1: 
I; 


Gin  or 


A  MANUAL 
FOR  COURTS-MARTIAL 

COURTS  OF  INQUIRY 

AND  OF  OTHER  PROCEDURE  UNDER 
MILITARY  LAW 


REVISED    IN    THE    JUDGE    ADVOCATE    GENERALS    OFFICE 
AND  PUBLISHED  BY  AUTHORITY  OF  THE  SECRETARY  OF  WAA 


CORRECTED  TO  AUGUST  1,  1918 

(CHANGES,  NOS.  1  TO  4) 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1918 


* 


\Y  NT, 

Document 
Office  of  the  Judge  Advocate  General 


£' 


War  Department, 
Office  of  the  Chief  of  Staff, 
Washington,  November  29,  1916. 
The  Manual  for  Courts-Martial,  Courts  of  Inquiry,  and  of  other 
Procedure  under  Military  Lavr,  prepared  by  direction  of  the  Secre- 
tary of  War  in  the  Office  of  the  Judge  Advocate  General  for  use  in 
the  Army  of  the  United  States,  is  approved,  and  will  be  published 
for  the  information  and  guidance  of  all  concerned,  including  all 
courts-martial  in  the  National  Guard  of  the  several  States  and  Ter- 
ritories and  the  District  of  Columbia  not  in  the  service  of  the  United 
States,  in  so  far  as  applicable,  under  section  102  of  the  national- 
defense  actf  approved  June  3,  1916.     The  provisions  of  this  Manual 
will  be  in  force  and  effect  on  and  after  March  1,  1017. 
By  order  of  the  Secretary  of  War : 

H.  L.  Scott, 
Major  General,  Chief  of  Staff. 


TABLE  OF  CONTENTS. 


Page. 

Introduction 1X 

Chapter.  I.  Military  jurisdiction 

Section  I.  Source  and  kinds  of  military  jurisdiction 1 

Section  II.  Exercise  of  military  jurisdiction 2 

Section  III.  Persons  subject  to  military  law 2 

Chapter  II.  Courts-martial— Classification— Composition 5 

Section.  I.   Classification 5 

Section  II.  Composition 6 

Chapter  III.  Courts-martial— By  whom  appointed 9 

Section  I.  General  courts-martial 9 

Section  II.  Special  courts-martial 12 

Section  III.  Summary  courts-martial 13 

Section  IV.  Judge  advocate 15 

Chapter  IV.  Courts-martial— Jurisdiction 17 

Section  I.  Jurisdiction  in  general 17 

Section  II.  Jurisdiction  of  general  courts-martial 21 

Section  III.  Jurisdiction  of  special  courts-martial 22 

Section  IV.  Jurisdiction  of  summary  courts-martial 22 

Section  V.  Jurisdiction  of  other  military  tribunals 23 

Chapter  V.  Courts-niartial— Procedure  prior  to  trial 25 

Section  I.  Arrest  and  confinement 25 

Section  II.  Arrest  of  deserters  by  civil  authorities 28 

Chapter  VI.  Courts-martial— Procedure  prior  to  trial  (continued) 31 

Section  I.  Preparation  of  charges 31 

Section  II.  Action  upon  charges 40 

Chapter  VII.  Courts-martial— Organization 43 

Section  I.  The  members 44 

Section  II.  The  judge  advocate 47 

Section  III.  Assistant  judge  advocate 51 

Section  IV.  Counsel 51 

Section  V.  Reporter 52 

Section  VI.  Interpreter 55 

Chapter  VIII.  Courts-martial— Organization  (continued) 57 

Section  I.  Challenges 57 

Section  II.  Oaths 61 

Section  III.  Continuances 63 

Section  IV.  Completion  of  organization 64 

Chapter  IX.  Courts-martial— Procedure  during  trial 65 

Section  I.  Arraignment 


Section  II.  Pleas. 


(if. 


Section  III.  Refusal  to  plead 73 

Section  IV.  Motions J_4 

Chapter  X.  Courts-martial— Witnesses  and  depositions 77 

Section  I.  Attendance  of  witnesses 7S 

Section  II.  Depositions °4 

Section  III.  Fees,  mileage,  and  expenses  of  witnesses 88 

v 


VI  CONTENTS. 

Pago. 

Chapter  X  I.  Courts-martial-  Evidence 91 

Section  I.  Introductory  pro\  ifdona 93 

mstantial  evidence 99 

imonial  evidence 101 

m  IV.  Documents 1 19 

d  V.  Examination  of  witnesses 122 

Section  VI.  Credibility  of  witnesses L25 

a  VII.  Depositions  and  former  testimony 127 

Lon  VIII.  Presumptions 130 

a  IX.  Judicial  notice 137 

Chapter  XI  r.  CourtB-martial— Concluding  incidents  of  the  trial 139 

ion  I.  Statements  and  arguments 140 

Section  II.  Findings 141 

ion  HI.  l'ri'\ious  convictions 14  1 

■uces 145 

Chapter  XI  IT.  Courts-martial — Punishments 151 

Section  I.  Disciplinary  power  of  commanding  officer 151 

Section  II.  Confinement  in  a  penitentiary L53 

Section  III.  War  Department  policy  regarding  punishments 156 

Section  IV.  Prohibited  punishments 159 

Section  V.  Death — Cowardice — Fraud 100 

Section  VI.  Maximum  limits 1(J1 

Chapter  XIV.  Courts-martial — Procedure  of  special  and  summary  courts  and 

procedure  on  revision 171 

Section  I.  Special  courts-martial 171 

Section  II.  Summary  courts-martial 171 

Section  III.  Procedure  on  revision 1 72 

Chapter  XV.  Courts-martial — Records  of  trial 173 

Section  I.  General  courts-martial 173 

Section  II.  Special  courts-martial 177 

Section  III.  Summary  courts-martial 178 

Section  IV.  Correction  of  records  of  trial 178 

Section  V.  Disposition  of  records  of  trial 179 

Section  VI.  Loss  of  records  of  trial ]  SO 

Chapter  XVI.  Courts-martial — Action  by  appointing  or  superior  authority 181 

Section  I.  Action  on  the  proceedings L82 

Section  II.  Action  after  promulgation  of  sentence 190 

Chapter  XVII.  Punitive  articles 193 

Section  I.  Enlistment — Muster — Returns 196 

Section  II.  Desertion — Absence  without  leave. 201 

Section  III.  Disrespect — Insubordination — Mutiny 

Section  IV.  Arrest — Confinement 218 

Section  V.  War  offenses 225 

Section  A  I.   \Ii-<  ellaneous  crimes  and  offenses 237 

Chapter  XVIII.  Courts  of  inquiry 

Section  I.  Constitution L's? 

n  II.  Jurisdiction 288 

m  III.  Composition 288 

ion  IV.  Powers 289 

Section  V.  Procedure 290 

Section  VI.  Record* 292 


CONTENTS.  VII 

Page. 

Chapter  XIX.  Habeas  corpus 293 

Section  I.  Purpose  of  the  writ 293 

Section  II.  "Where  restraint  is  by  the  United  States 293 

Section  III.  Return  to  writ  issued  by  State  court 294 

Section  IV.  Return  to  writ  issued  by  United  States  court 295 

Section  V.  Writ  issued  in  the  Philippine  Islands 295 

Chapter  XX.  Miscellaneous  and  transitory  provisions 297 

Section  I.  Miscellaneous  provisions 297 

Section  II.  Transitory  provision 3°1 

Appendices: 

1.  The  Articles  of  War 305 

2.  System  of  courts-martial  for  National  Guard  not  in  the  service  of  the 

United  States 331 

2a.  Form  of  order  appointing  a  General  court-martial 332a 

■2\>.  Form  of  order  appointing  a  Special  court-martial 332b 

3.  Charge  sheel 333 

4.  Forms  for  charges 335 

4a.  Forms  for  synopses  of   convictions  by  court-martial   (lor  entry  in 

service  record) 352b 

5.  Suggestions  for  trial  judge  advocates 353 

6.  Form  for  record— General  court-martial  and  revision  proceedings 357 

7.  Form  for  record — Special  court-martial 365 

8.  Form  for  record— Summary  court-martial 367 

9.  Forms  for  sentences 

9a.  Forms  for  synopses  of  sentences 370a 

10.  Forms  lor  action  by  reviewing  authority 371 

11.  Court-martial  orders 375 

(a)  General  court-martial ;j~5 

(b)  Special  court-martial 376 

12.  Form  for  interrogatories  and  deposition 379 

13.  Subpoena  for  civilian  witness 383 

14.  Warrant  of  attachment 387 

]  5.     Returns  and  briefs  in  habeas  corpus  proceedings 389 

16.  Voucher  (Form  338):  Civilian  witness  not  in  Government  employ.. .  397 

17.  Voucher  (Form  350A):  Civilian  witness  in  Government  employ 401 

18.  Voucher  (Form  339):  Personal  services,  reporter 405 

1!).     Reporl  of  inquesl 409 

20.     General  I  <•                    .  War  Department,  1918,  and  procedure  there- 
under   411 


INTRODUCTION  TO  THE  FIRST  EDITION. 

This  Manual  introduces  and  interprets  to  the  Military  Establish- 
ment the  revised  Articles  of  War  which  become  effective  March  1, 
1917.  The  revision  supersedes  the  existing  articles,  sometimes  desig- 
nated the  Code  of  1874,  and  repeals  all  other  laws  and  parts  of  laws 
inconsistent  therewith.  It  will  facilitate  an  understanding  of  the 
scope  and  effect  of  the  revision  to  refer  to  the  history  and  develop- 
ment of  the  amended  Code  of  1874,  indicate  briefly  its  most  serious 
defects,  and  summarize  the  principal  changes  introduced  by  the 
revision. 

HISTORY    OF    UNITED    STATES    ARTICLES    OF    WAR   PRIOR   TO    191G. 

Passing  over  the  earlier  enactments  of  the  American  Colonies  of 
Articles  of  War  for  the  government  of  their  respective  forces,  ex- 
amples of  which  are  found  in  the  articles  adopted  by  the  Provisional 
Congress  of  Massachusetts  Bay,  April  5,  1775  (Am.  Archives,  4th 
series,  vol.  1,  p.  1350),  and  the  similar  articles  adopted  in  May  and 
June  of  that  year  by  the  Provincial  Assemblies  of  Connecticut  and 
Ehode  Island  and  the  Congress  of  New  Hampshire  (idem,  vol.  2, 
pp.  565,  1153,  1180),  we  come  (a)  to  the  first  American  articles 
enacted  by  the  Second  Continental  Congress  June  30,  1775,  and 
copied  largely  from  the  British  Code  of  1765  and  the  Massachusetts 
Code;  (b)  the  Code  of  1776,  an  enlargement  and  modification  of  the 
Code  of  1775;  and  (c)  the  supplemental  Code  of  1786,  regulating 
the  composition  of  courts-martial  and  generally  the  administration 
of  military  justice.  The  articles  in  force  on  the  adoption  of  the 
Constitution  of  the  United  States  were,  by  act  of  the  First  Congress, 
made  to  apply  to  the  then  existing  Army  "  so  far  as  the  same  are  ap- 
plicable" and  were  continued  in  force  by  successive  enactments 
until  April  10,  1806,  when,  by  act  of  Congress  of  that  date,  revised 
articles,  adapted  to  the  changed  form  of  government,  were  enacted, 
superseding  all  other  enactments  on  the  same  subject.  Thus  the 
Oxle  of  1806  was,  in  effect,  a  reenactment  of  the  articles  in  force 
during  and  immediately  following  the  period  of  the  Eevolutionary 
War,  with  only  such  modifications  as  were  necessary  to  adapt  them 
to  the  Constitution  of  the  United  States.  It  comprised  101  articles, 
with  an  additional  provision  relating  to  spies.  During  the  War  of 
1812  four  of  the  articles  of  this  code  were  amended,  during  the 
Seminole  wars  three  articles  were  amended  and  one  new  article  added, 
and  during  the  Civil  War  seventeen  articles  were  amended  and  eight 


X  Mi  :    COURTS-MABTIAL. 

new  article-  added.  All  of  these  new  articles  and  amendments  wen} 
gathered  int<>  the  restatement  of  the  articles  which  appears  in  the 
Revised  Statutes  <»f  L874,  making  a  code  of  128  articles,  with  the 
additional  provision  Delating  to  spies.  Between  tluu  year  and  1912, 
when  this  revision  was  submitted  to  Congress,  the  more  important 
amendments  have  been  the  summary  court  and  maximum  punishment 
of  L890;  the  repeal  of  articles  80  and  110  in  1898;  (he  repeal  of 
article  L23  and  the  amendment  of  articles  122  and   L24  in  l!>10. 

DEFECTS    OF   ARTICLES   PRIOR  TO    1916    REVISION. 

The  more  serious  defects  of  the  Code  of  1874  were  those  incident  to 
its  development  by  compilation  from  a  now  obsolete  and  replaced 
foreign  code,  and  by  piecemeal  amendment  made  during  periods  of 

war  and  under  the  stress  of  war  conditions.  Eighty-seven  articles 
of  the  Code  of  1806  survived  in  the  amended  Code  of  187-i  without 
change  or  with  only  minor  changes  of  style,  and  most  of  the  remain- 
ing articles  of  that  code  without  substantial  change,  with  the  result 
thai  the  latter  code  was  unscientific  in  its  arrangement  and  contained 
many  provisions  either  wholly  obsolete  or  illy  adapted  to  present 
sen  ice  conditions.  We  may  cite  as  examples  illustrating  its  archaic 
character  the  following  of  its  provisions: 

The  fifty-fourth  and  fifty-fifth  articles  prohibited  any  kind  of  riot 
t<>  the  disquieting  of  "citizens  of  the  United  States,"  and  article  59 
made  mandatory  the  turning  over  to  a  civil  magistrate  of  officers 
and  soldiers  accused  of  an  offense  against  the  person  or  property  of 
any  "  citizen  of  the  United  States,"  but  only  "  upon  application  duly 
made  by  or  in  behalf  of  the  party  injured,"  ignoring  the  more 
modern  doctrine  that  all  persons  residing  within  the  United  States 
are  entitled  to  the  equal  protection  of  the  laws,  and  that  crimes  are 
now  punished,  not  at  the  instance  of  an  individual  but  at  the  instance 
of  the  public.  Article  126  regulated  administration  upon  the  effects 
of  decease,]  soldiers  and  devolved  the  duties  incident  thereto  upon 
the  commanding  officer  of  the  troop,  battery,  or  company  to  which 
the  deceased  soldier  belonged,  but  made  no  provision  for  similar 
arising  among  the  large  class  of  soldiers  who,  under  the  present- 
day  organization,  do  not  belong  to  troops,  batteries,  or  companies; 
and  similar  instances  might  be  multiplied  indefinitely. 

I  M  r<;i;  r.\N  I    <  HANGE8   IN    REVISION. 

The  limits  assignable  to  this  introduction  permit  only  the  follow- 
ing brief  summary  of  the  more  important  changes  introduced  by  the 
I  articles: 

I.  Certain  provisionf  of  the  Revised  Statutes  and  of  the  Statutes 
at  Large  in  the  nature  of  Articles  of  War,  and  proper  for  this  reason 
to  be  incorporated  in  a  military  code,  are  reenacted  in  their  proper 


INTRODUCTION.  XI 

places  in  the  revised  articles,  and  certain  other  statutes  relating  to  the 
procedure  and  practice  of  the  criminal  courts  of  the  United  States 
are  made  the  basis  of  new  articles.  Examples  of  legislation  incor- 
porated and  of  new  articles  suggested  are  found  in  revised  artielea 
2,  4,  7,  8,  22,  23, 25,  30,  34,  36,  37,  38,  42,  45,  48,  52,  80,  82, 106, 107,  108, 
112,  114,  117,  118,  and  11  s>. 

2.  Articles  1,  10,  11.  3G,  37,  52,  53,  76,  87,  and  101  of  the  Code  of 
1874,  either  wholly  obsolete  or  embracing  only  matters  properly 
within  the  field  of  Army  Regulations,  have  been  dropped. 

3.  Related  provisions  have  been  brought  together  under  five  sepa- 
rate headings,  and  where  subheads  would  serve  a  useful  purpose  they 
have  been  employed  to  complete  the  classification. 

4.  Provisions  relating  to  the  same  subject-matter  have  been  con- 
solidated into  a  single  article.  Examples  of  such  consolidation  may 
bs  found  in  revised  article  48,  which  reenacts  with  modifications 
the  substantial  provisions  of  four  articles  of  the  Code  of  1874  and 
one  section  of  the  Revised  Statutes,  all  relating  to  the  confirmation 
of  sentences  of  courts-martial;  and  in  revised  article  61,  which  re- 
enacts  in  brief  form  the  material  provisions  of  six  of  the  existing 
articles  of  that  code  relating  to  unauthorized  absences. 

5.  The  authority  to  convene  general  courts-martial  has  been  ex- 
tended to  include  "  the  commanding  officer  of  any  district  or  of  any 
force  or  body  of  troops  "  when  empowered  by  the  President,  thus 
providing  for  the  case  of  expeditionary  forces  not  the  equivalent  of 
a  brigade  or  higher  unit,  and  other  emergent  services,  and  permitting 
general  court-martial  jurisdictions  to  be  multiplied  as  the  exigencies 
of  the  service  may  require.     (Art.  8.) 

6.  The  jurisdiction  of  the  general  court-martial  is  made  concur- 
rent with  that  of  the  military  commission  and  other  war  tribunals  in 
the  trial  of  offenses  against  the  laws  of  war,  and  further  extended  to 
include  the  capital  offenses  of  murder  and  rape  when  committed  in 
time  of  peace  at  places  outside  the  geographical  limits  of  the  States 
of  the  Union  and  the  District  of  Columbia.     (Arts.  12, 15,  and  92.) 

7.  Authority  is  granted  for  the  detail  of  one  or  more  assistant  trial 
judge  advocates  few  each  general  court-martial,  with  power  to  act 
for  the  judge  advocate,  thus  largely  increasing  the  capacity  of  these 
courts  in  the  disposition  of  cases.     (Arts.  11  and  116.) 

8.  The  provision  of  the  Code  of  1874  making  regular  officers  incom- 
petent to  sit  on  courts-martial  for  the  trial  of  officers  and  soldiers  of 
other  forces  is  abolished,  and  all  distinctions  as  to  eligibility  of 
officers  of  the  several  forces  for  the  performance  of  court-martial 
duty  is  removed.     (Art.  4.) 

9.  A  disciplinary  court,  intermediate  between  the  general  and  stmv 
mary  court,  with  adequate  power  to  impose  disciplinary  punishments 
but  without  the  power  to  adjudge  dishonorable  discharge,  is  provided 


XII  MANUAL  FOR   COURTS-MARTIAL. 

for  th(  trial  of  offenses  where  the  retention  of  the  offender  with  his 

command,  to  be  disciplined  rather  than  his  dishonorable  discharge,  is 
contemplated,  leaving  the  general  court-martial  with  its  extended 
jurisdiction  to  be  resorted  to  in  grave  cases  calling  for  discipline,  dis- 
honorable discharge,  or  prolonged  detention  in  confinement  with  or 
without  dishonorable  discharge,  and  the  summary  court  for  the  trial 
of  minor  offenses  calling  for  light  punishments  of  confinement  and 
forfeiture. 

LO.  The  power  to  prescribe  the  procedure,  including  modes  of 
proof,  in  cases  before  courts-martial  and  other  military  tribunals  has 
been  expressly  delegated  to  the  President.     (Art.  38.) 

11.  The  statute  of  limitations  of  the  Code  of  1874  (art.  103,  as 
amended  by  act  of  Apr.  11, 1890)  fixed  a  uniform  period  of  two  years 
of  liability  to  trial  and  punishment  by  general  court-martial  (not 
expressly  excepting  any  capital  offenses),  to  be  reckoned  from  the 
da  to  of  the  commission  of  the  offense  to  the  date  of  the  issuing  of 
the  order  for  trial,  except  in  case  of  peace  desertion,  when  the  period 
was  required  to  be  reckoned  from  the  date  of  expiration  of  enlistment 
from  which  the  soldier  deserted  to  the  date  of  his  arraignment.  Xo 
period  of  limitation  was  prescribed  in  the  case  of  inferior  courts. 
The  new  military  statute  of  limitations  (art.  39)  expressly  excepts 
from  its  operation  the  capital  offenses  of  desertion  committed  in  time 
of  war,  mutiny;  and  murder,  fixes  the  period  of  limitation  at  three 
years  for  the  graver  common  law  and  statutory  felonies  denounced 
and  punished  in  revised  articles  93  and  94,  conforming  to  the  rule 
governing  Federal  civil  courts  with  concurrent  jurisdiction  of  these 
offenses;  and  the  same  period  for  the  offense  of  desertion  in  time  of 
peace,  a  study  of  statistics  having  shown  that  few,  if  any,  deserters 
of  this  class  are  arrested  after  three  years  from  date  of  desertion.  The 
two-year  period  of  limitation  prescribed  by  the  Code  of  1874  is  re- 
tained in  the  revised  articles  for  all  other  offenses  than  those  above 
named,  and  the  uniform  rule  is  established  that  all  these  periods  shall 
be  reckoned  from  the  date  of  commission  of  the  offense  to  the  date  of 
arraignment.    The  new  statute  covers  trials  by  any  court-martial. 

12.  The  right  of  persons  in  the  military  service  to  remove  to  a 
Federal  court  all  suits  and  prosecutions  brought  against  them  in  a 
State  court  for  acts  done  under  the  color  of  military  status  is 
secured  by  article  117  of  the  revised  code. 

L8.  The  rigid  of  the  reviewing  or  confirming  authority  to  mitigate 
a  finding  of  guilty  by  a  court-martial  to  a  finding  of  guilty  of  any 
lesser  included  offense  is  conferred  by  articles  17  and  10  of  the 
revised  code. 

1 1.  The  article  of  the  Code  of  1874  respecting  the  taking  of  deposi- 
tions (art.  91)  has  proved  in  practice  unsatisfactory,  in  that  it 
authorized   the   OSS   of  a    deposition   when   the   witness  resided   just 


INTRODUCTION'.  XIH 

outside  the  State  in  which  the  court  was  in  session,  though  perhaps 
only  a  few  miles  from  the  place  of  its  sessions,  but  did  not  permit 
the  use  of  a  deposition  when  the  witness  resided  in  the  State,  even 
though  his  place  of  residence  was  remote' from  the  place  of  meeting; 
and  further  unsatisfactory  in  that  it  made  no  provision  for  the  tak- 
ing of  a  deposition  when  a  witness  was  about  to  go  beyond  the  State, 
Territory,  or  District  in  which  the  court  was  sitting,  or  when,  by 
reason  of  age,  sickness,  bodily  infirmity,  or  other  reasonable  cause,  he 
was  unable  to  appear  and  testify  in  person  at  the  place  of  trial. 
These  deficiencies  are  supplied  in  article  25  of  the  new  code,  which 
is  drawn  so  as  to  conform,  in  the  main,  to  the  provisions  of  section 
863  of  the  Eevised  Statutes  regulating  the  taking  of  depositions  for 
use  in  civil  suits. 

15.  Under  a  provision  of  the  Code  of  1874  (art.  9G)  no  person 
might  be  sentenced  to  suffer  death  except  by  the  concurrence  of  two- 
thirds  of  the  members  of  a  general  court-martial,  but  it  was  open 
to  a  bare  majority -of  the  court  to  find  an  accused  guilty  of  an  offense 
for  which  the  death  sentence  was  mandatory ;  so  that  the  article  did 
not,  as  a  matter  of  fact,  furnish  any  special  protection  to  an  accused 
in  a  case  of  that  kind,  in  view  of  the  obvious  duty  the  court  had  to 
impose  the  sentence  required  by  law  upon  a  legal  conviction.  In 
revised  article  43  the  requirement  is  imposed  that  two-thirds  of  the 
members  of  the  court  shall  concur  in  the  conviction  of  an  accused  of 
an  offense  for  which  the  death  penalty  is  made  mandatory  by  law, 
as  well  as  in  the  imposition  of  the  sentence  of  death. 

The  foregoing  list  of  important  changes  introduced  by  the  revised 
articles  is  by  no  means  complete,  as  there  has  been  a  general  recast- 
ing of  the  articles;  but  it  embraces  those  to  which  it  is  desirable 
that  the  special  attention  of  the  service  be  invited.  The  complete 
recasting  of  the  articles  has  not  extended  to  changing  language  de- 
fective in  form,  but  to  which  settled  construction  has  assigned  a 
definite  meaning. 

SCOPE  OF  PRESENT   MANUAL. 

The  term  "  military  law  "  is  frequently  used  in  a  wide  sense  to 
include,  not  only  the  disciplinary,  but  also  the  administrative  law 
of  the  military  establishment,  as,  for  instance,  the  whole  range  of 
the  Army  Regulations.  But  in  distinguishing  military  from  civil 
law  we  say  that  military  law  is  the  law  relating  to,  and  administered 
by,  military  courts.  Military  law,  in  this  sense,  concerns  itself  with 
the  trial  and  punishment  of  persons  subject  to  it.  This  is  the  dis- 
ciplinary aspect  of  the  subject,  and  while  officers,  as  such,  must  have 
a  knowledge  of  military  law  in  the  broader  definition,  the  proper 
functions  of  a  court-martial  manual  are  confined  to  the  law  of  mili- 
tary discipline. 


XIV  MANUAL  FOR  COURTS  MARTIAL. 

Earlier  manuals  have  functioned  in  this  field,  but  they  have,  ui 
general,  purported  t<>  be  only  compilations  of  pertinent  .statutes  ano 
regulations,   thus   furnishing  officers   and   oourts-martia]    with  the 

framework  of  the  law  which  they  are  required  to  administer,  bu 
leaving  them  to  a  search  of  texts  and  authorities  for  the  fullness  oi 
the  principles  applicable  to  oven  the  most  familiar  and  elementary 

questions.  AVhile  the  present  work  confines  itself  to  the  disciplinary 
aspect  of  the  subject,  and  thus  makes  no  profession  to  be  a  manual  of 
military  law.  it  ia  intended  to  cover  its  appropriate  field  as  fully  as 
is  possible  under  the  restrictive  definition  of  a  manual,  and  thus  to 
place  in  the  hands  of  officers  a  guide  that  shall  be  reasonably  sufficient 
in  all  the  ordinary  exigencies  of  service. 

The  Manual  in  its  arrangement  of  subject  matter  follows,  as  far 
as  has  been  found  practicable,  the  arrangement  of  the  new  code.  In 
scope  it  has  been  extended  to  include  chapters  on  "Evidence"  and 
•  Punitive  articles."  In  the  preparation  of  the  former  chapter  this 
office  has  had  the  assistance  of  Prof.  Wigmore  of  the  Northwestern 
University,  recently  commissioned  a  major  and  judge  advocate  in 
the  Oflicers,  Reserve  Corps.  Prof.  Wigmore  has  given  liberally  of 
his  time  in  the  preparation  of  this  chapter,  has  lent  the  authority  of 
his  name  to  what  appears  therein,  and  has  performed  a  work  of 
great  value  for  which  appreciation  will  be  general  throughout  the 
service.  In  the  chapter  on  "  Punitive  articles "  an  effort  has  been 
made  to  meet  what  is  conceived  to  be  a  very  urgent  need  in  our  serv- 
ice, namely,  a  statement  of  the  essentials  of  proof  under  the  more 
important  offenses  denounced  and  punished  by  the  new  code,  for  the 
guidance  of  trial  judge  advocates. 

Due  to  the  brief  interval  between  the  enactment  of  the  new  code 
ami  the  date  when  the  Manual  had  to  go  to  the  printer  in  order  to 
be  available  for  troops  on  foreign  .station  prior  to  the  taking  effect 
of  the  new  code,  the  preparation  of  the  Manual  has  necessarily  been 
done  with  a  haste  which  in  a  work  of  such  importance  it  would  have 
been  desirable  to  avoid.     It  is  hoped,  however,  that  no  fundamental 
errors  appear  therein.     In  using  the  Manual  it  should  be  borne  in 
mind  (hat  over  attention  to  technicalities  represents  a  failure  to  grasp 
l  Ik-  spirit  of  the  revision  ami  will  lead  to  requests  for  interpretation 
which  may  usually  be  avoided  by  the  application  of  broad  principle  B 
It  is  hoped  that  by  the  amplification  of  chapters  of  this  Manual  and 
tie-  inelusion  of  new  chapters  on  such  subjects  as  "The  law  of  ri< 
duty."  -.Martial  law,"  and  "Military  governmentM  future  edil 
may  he  made  to  embrace  all  that  is  accessary  to  the  service  at  large 
regarding  the  general  subject  of  military  law. 
i   1,  1917. 


ABBREVIATIONS. 

A.  R Army  Regulations,  1913. 

A.  W Articles  of  War,  Code  of  1916. 

Bishop Bishop's  New  Criminal  Law,  8th  edition. 

Clark Clark's  Criminal  Law,  2d  edition. 

Clark  and  Marshall The  Law  of  Crimes,  2d  edition. 

Cyc Cyclopedia  of  Law  and  Procedure. 

Davis A  Treatise  on  the  Military  Law  of  the  United  States, 

2d  edition. 
Digest Digest   of   Opinions   of   Judge   Advocates   General   of 

the  Army,  1912. 

Dudley Military  Law  and  Procedure  of  Courts-Martial,  1910. 

Greenleaf Law  of  Evidence,  16th  edition. 

R.  S Revised  Statutes  of  the  United  States,  1878. 

Thompson Law  of  Trials. 

Wharton Criminal  Law,  9th  edition. 

Wigmore Law  of  Evidence. 

Wigmore,  P.  C Pocket  Code  of  Evidence. 

Winthrop Military  Law  and  Precedents,  2d  edition,  1896. 

xv 


The  discipline  and  reputation  of  the  Army  arc  deeply  in- 
volved in  the  manner  in  which  military  courts  are  conducted 
and  justice  administered.  The  duties,  therefore,  that  de- 
volve on  officers  appointed  to  sit  as  members  of  courts-mar- 
tial are  of  the  most  grave  and  important  character.  That 
these  duties  may  be  discharged  with  justice  and  propriety 
it  is  incumbent  on  all  officers  to  apply  themselves  diligently 
to  the  acquirement  of  a  competent  knowledge  of  military 
law,  to  make  themselves  perfectly  acquainted  with  all  orders 
and  regulations,  and  with  the  practice  of  military  courts. — 
Army  Kegulations,  1835,  Article  XXXV,  paragraph  1. 


CHAPTEE  I. 
MILITARY  JURISDICTION. 


Fagot 

Section  I :  Source  and  kinds  of  military  jurisdiction 1 

1.  Source 1 

2.  Kinds 1 

(a)  Military  government 1 

(b)  Martial  law  at  home 1 

(c)  Martial  law  applied  to  the  Army 2 

Id)  Military  law 2 

Section  II:  Exercise  of  military  jurisdiction 2 

3.  Military  tribunals 2 

(a)  Military  commissions  and  provost  courts 2 

(b)  Courts-martial,  general,  special,  and  summary 2 

(c)  Courts  of  inquiry 2 

Section  III:  Persons  subject  to  military  law 2 

4.  Classes  enumerated 2 

(a)  Regular  Army,  National  Guard,  and  Volunteers 3 

(6)  Cadets 4 

(c)  Marine  Corps 4 

(d)  Medical  Department  of  Navy  serving  with  detached  marines 4 

(e)  Retainers  to  the  camp  and  others 4 

(/")  Persons  serving  sentence  of  court-martial „ 4 

(<7)  Army  field  clerks 4 

(/;)  Field  clerks,  Quartermaster  Corps 4 


Section  I. 

SOURCE  AND  KINDS  OF  MILITARY  JURISDICTION. 

«    1.  Source. — The  source  of  military  jurisdiction  is  the  Constitution, 
the  specific  provisions  relating  to  it  being  found  in  powers  granted 
to  Congress,  in  the  authority  vested  in  the  President,  and  in  a  pro- 
vision of  the  fifth  amendment. 
2.  Kinds. — Military  jurisdiction  is  of  four  kinds,  viz: 

(a)  Military  government  (the  law  of  hostile  occupation) ;  that  is, 
military  power  exercised  by  a  belligerent  by  virture  of  his  occupation 
of  an  enemy's  territory,  over  such  territory  and  its  inhabitants.  This 
belongs  to  the  law  of  war  and  therefore  to  the  law  of  nations.  When 
a  conquered  territory  is  ceded  to  the  conqueror,  military  government 
continues  until  civil  government  is  established  by  the  new  sovereign. 

(b)  Martial  law  at  home  (or,  as  a  domestic  fact) ;  by  which  is 
meant  military  power  exercised  in  time  of  war,  insurrection,  or  re- 
bellion in  parts  of  the  country  retaining  their  allegiance,  and  over 
persons  and  things  not  ordinarily  subjected  to  it. 

53910°— IS 2  1 


2  MANUAL   FOB   COUBTS-MABTIAL. 

(c)  Maitial  law  applied  to  the  Army;  that  is,  military  power  extend 
Lug  in  time  of  war,  insurrection,  or  rebellion  over  persons  in  the  mili- 
tary service,  as  to  obligations  arising  out  of  such  emergency  and  not 
falling  within  the  domain  of  military  law,  nor  otherwise  regulated 
by  law. 

The  last  two  divisions  (h)  and  (c)  are  applications  of  the  doctrine 
of  necessity  to  a  condition  of  war.  They  spring  from  the  right  of 
national  self-preservation.     - 

(d)  Military  law;  which  is  the  legal  system  that  regulates  the  gov- 
ernment of  the  military  establishment.  It  is  a  branch  of  the  mn  oicipal 
law.  and  in  the  United  States  derives  its  existence  from  special  consti- 
tutional grants  of  power.  It  is  both  written  and  unwritten.  The 
sources  of  written  military  law  are  the  Articles  of  War  enacted  bj 
Congress  August  29,  1016;  other  statutory  enactments  relating  to 
the  military  service;  the  Arm}'  Regulations;  and  general  and  special 
orders  and  decisions  promulgated  by  the  War  Department  and  by 
department,  post,  and  other  commanders.  The  unwritten  military 
law  is  the  "  custom  of  war,"  consisting  of  customs  of  service,  both  in 

and  war. 
This  Manual  deals  primarily  with  military  law. 

Section  II. 
EXERCISE  OF  MILITARY  JURISDICTION. 

3.  Military  tribunals. — Military  jurisdiction  is  exercised  through 
the  following  military  tribunals: 

(a)  Military  commissions  and  provost  courts,  for  the  trial  of  offenders 
against  the  laws  of  war  and  under  martial  law. 

(b)  Courts-martial — general,  special,  and  summary — for  the  trial  of 
offenders  against  military  law.     (A.  W.  3.) 

[Note  1. — The  general  court-martial  has  concurrent  jurisdiction  with  military 
commissions  and  provost  courts  to  try  offenders  against  the  laws  of  war 
(A.  W.  12.) 

Note  2. — For  the  authority  to  appoint  courts-martial  in  the  National  Guard 
not  in  the  service  of  the  United  States,  and  the  jurisdiction  and  powers  of  such 
cuuits.  Bee  sections  102-108,  act  of  June  3,  1916,  39  Stat.,  208,  209;  Appendix  2. 
post.] 

(c)  Courts  of  inquiry,  for  the  examination  of  transactions  of  or 

accusations  or  imputations  against  officers  or  soldiers.     (A.  W.  97.) 

[Notb. — Tin-  composition,  jurisdiction,  procedure,  etc.,  of  these  tribunals  are 
treated  in  the  succeeding  chapters  of  this  Manual.] 

Section  III. 
PERSONS  SUBJECT  TO  MILITARY  LAW. 

4.  Classes  enumerated. — The  following  persons  are  subject  to  the 

Articles  of  War  (A.  W.  2): 

[Notb.— Wherever  tin"  following  words  nn>  used  in  the  Articles  of  War  or 
this  Manual,  they  are  t<>  be  construed  in  the  sense  Indicated  below,  unless  the 


MILITARY   JURISDICTION.  S 

context  shows  that  a  different  sense  is  intended,  viz:  (a)  The  word  "officer" 
shall  be  construed  to  refer  to  a  commissioned  officer;  (b)  the  word  "soldier''' 
shall  be  construed  as  including  a  noncommissioned  officer,  a  private,  or  any 
other  enlisted  man;  (c)  the  word  "company"  shall  be  understood  as  including 
a  troop  or  battery  ;  and  (d)  the  word  "  battalion  "  shall  be  understood  as  includ- 
ing a  squadron.     (A.  W.  1.)] 

(a)  All  officers  and  soldiers  belonging  to  the  Regular  Army  of 

the  United  States;  all  volunteers,  from  the  dates  of  their  muster  or 

acceptance  into  the  military  service  of  the  United  States;  and  all 

other  persons  lawfully  called,  drafted,  or  ordered  into,  or  to  duty,  or 

for  training  in  the  said  service,  from  the  dates  they  are  required  by 

the  terms  of  the  call,  draft,  or  order  to  obey  the  same. 

[Note. —  (a)  Regular  Army. — The  Regular  Army  of  the  United  States,  includ- 
ing the  existing  organizations,  shall  consist  of  sixty-four  regiments  of  Infantry, 
twenty-five  regiments  of  Cavalry,  twenty-one  regiments  of  Field  Artillery,  a 
Coast  Artillery  Corps,  the  brigade,  division,  army  corps,  and  army  headquar- 
ters, with  their  detachments  and  troops,  a  General  Staff  Corps,  an  Adjutant 
General's  Department,  an  Inspector  General's  Department,  a  Judge  Advocate 
General's  Department,  a  Quartermaster  Corps,  a  Medical  Department,  a  Corps 
of  Engineers,  an  Ordnance  Department,  a  Signal  Corps,  the  officers  of  the 
Bureau  of  Insular  Affairs,  the  Militia  Bureau,  the  detached  officers,  the 
detached  noncommissioned  officers,  the  chaplains,  the  Regular  Army  Reserve, 
all  organized  as  hereinafter  provided,  and  the  following  as  now  authorized  by 
law:  The  officers  and  enlisted  men  on  the  retired  list;  the  additional  officers; 
the  professors,  the  Corps  of  Cadets,  the  general  army  service  detachment,  and 
detachments  of  Cavalry,  Field  Artillery,  and  Engineers,  and  the  band  of  the 
United  States  Military  Academy;  the  post  noncommissioned  staff  officers;  the 
recruiting  parties,  the  recruit  depot  detachments,  and  unassigned  recruits ;  the 
service  school  detachments ;  the  disciplinary  guards ;  the  disciplinary  organiza- 
tions ;  the  Indian  Scouts ;  and  such  other  officers  and  enlisted  men  as  are  now 
or  may  be  hereafter  provided  for.     (Sec.  2,  act  of  June  3,  1916,  39  Stat.,  166.) 

(b)  Volunteers. — The  volunteer  forces  shall  be  subject  to  the  laws,  orders, 
and  regulations  governing  the  Regular  Army  in  so  far  as  such  laws,  orders, 
and  regulations  are  applicable  to  officers  or  enlisted  men  whose  permanent 
retention  in  the  military  service,  either  on  the  active  list  or  on  the  retired  list, 
Is  not  contemplated  by  existing  law.     (Sec.  4,  act  of  Apr.  25,  1914,  38  Stat.,  347.) 

(c)  National  Guard. — The  National  Guard,  when  called  as  such  into  the 
service  of  the  United  States,  shall,  from  the  time  they  are  required  by  the 
cerrns  of  the  call  to  respond  thereto,  be  subject  to  the  laws  and  regulations 
governing  the  Regular  Army,  so  far  as  such  laws  and  regulations  are  applicable 
to  officers  and  enlisted  men  whose  permanent  retention  in  the  military  service, 
either  on  the  active  list  or  on  the  retired  list,  is  not  contemplated  by  existing 
law.     (Sec.  101,  act  of  June  3,  1916,  39  Stat,  208.) 

[Note. — The  militia  when  called  into  the  service  of  the  United  States  is  also 
lubject  to  military  law.     (85  Stat..  399.)] 

(tf)  National  Guard  when  drafted  into  Federal  service, — Members  of  the 
National  (Juard  and  the  National  Guard  Reserve  drafted  into  the  military 
service  of  the  United  States  shall,  from  the  date  of  their  draft,  stand  dis- 
charged from  the  militia,  and  shall  from  said  date  be  subject  to  such  laws  and 
regulations  for  the  government  of  the  Army  of  the  United  States  as  may  be 
applicable  to  members  of  the  Volunteer  Army.  (Sec.  Ill,  act  .of  June  3,  1916, 
39  Stat.,  211.) 

(e)  Officer?  Reserve  Corps. — Any  officer  who,  while  holding  a  commission  in 
the  Officers'  Reserve  Corps,  shall  be  ordered  to  active  service  by  the  Secretary^ 
of  War  shall,  from  the  time  he  shall  be  required  by  the  terms  of  his  order  to* 
obey  the  same,  be  subject  to  the  laws  and  regulations  for  the  government  of 
Lrmy  of  the  Dnited  States,  in  so  far  as  they  are  applicable  to  officers  whose 
permanent  retention  in  the  military  service  is  not  contemplated.  (Sec.  38,  act 
of  June  3,  1916,  39  Stat.,  190.) 

(/)  The  Enlisted  Reserve  Corps. — Any  enlisted  man  of  the  Enlisted  Reserve 
>3orps  ordered  to  active  service  or  for  purposes  of  Instruction  or  training  shall, 
;rom  the  time  he  is  required  by  tin1  terms  of  the  order  to  obey  the  same,  be 
subject  to  the  laws  and  regulations  for  the  government  of  the  Army  of  the 
United  States.    (Sec.  55,  act  of  June  3,  1916,  39  Stat,  195.)  ] 


i  MANUAL  FOR  OOURTB-MABTIAL. 

(M  Cad 

(c)0  Ld   soldiers  <>f  the   Marine   Corps  when   detached 

for  service  witn  the  armies  of  the  United  States  by  order  of  the 
(A.  W.  2.) 
(J)  Officers  and  enlisted  men  of  the  Medical  Department  of  the 
ring  with  a  body  of  marines  detached  for  service  with  the 
rdance  with  the  provisions  of  section  sixteen  hundred 
and  twenty-one  of  the  Revised  Statutes,  shall,  while  so  serving,  be 
and  articles  of  ^ar  prescribed  for  the  govern- 
or the  Army  in  the  same  manner  as  the  officers  and  men  of  the 
Marine  Corps  while  so  serving.   (Act  of  Aug.  29, 1916,  39  Stat.,  573.) 

[Note. —  (">  Except  as  provided  In  (c)  and  (d)  supra  or  otherwise  spe- 
cifically provided  l>y  law,  Hie  Articles  of  War  do  not  apply  i"  any  person 
under  the  United  States  naval  jurisdiction.  (6)  An  officer  or  soldier  of  the 
Marine  Corps  detached  Cor  service  with  the  Army  may  be  tried  by  military 
court-martial  for  an  offense  committed  against  the  laws  f<>r  the  government  <>f 
the  naval  service  prior  to  his  detachment  and  for  an  offense  committed  against 
the  Articles  of  War  he  may  be  tried  by  a  naval  court-martial  after  such  detach- 
ment ceases.     (A.  AY.  2.)] 

Vil  retainers  to  the  camp  and  all  persons  accompanying  or 
serving  with  the  armies  of  the  United  States  without  the  territorial 
jurisdiction  of  the  United  States,  and  in  time  of  war  all  such  re- 
tain* rs  and  persons  accompanying  or  serving  with  the  armies  of 
the  United  States  in  the  field,  both  within  and  without  the  terri- 
torial  jurisdiction  of  the  United  States  though  not  otherwise  subject 
to  the  Articles  of  War. 

[Note. — In  addition  to  the  two  classes  (a)  "retainers  to  the  ramp"'  and  (&) 

"persons  serving  with  the  armies  of  the  United  States  in  the  Held"  who  were 

BUbject  to  military  jurisdiction  by  A.  W.  60  of  the  code  of  180G  (A.  W. 

63  of  the  revision  of  1874  I,  A.  W.  2  of  the  code  of  101G  includes  a  third  class,, 

viz,  in  ••  persons  accompanying  the  armies  of  the  United  States."] 

(/)  All  persons  under  sentence  adjudged  by  courts-martial. 

(g)  Army  field  clerks. 

[Note.— Hereafter  headquarters  clerks  shall  be  known  as  Army  field  clerks 
and  shall  *  *  *  be  subject  to  the  rules  and  Articles  of  War.  (Sec.  1,  act 
of  Aug.  29,  1916,  39  Stat,  625.)] 

(h)   Field  clerks,  Quartermaster  Corps. 

[N(  ed  two  hundred  clerks,  Quartermaster  Corps, 

*    *     *    shall  be  known  as  field  dork-;.  Quartermaster  Corps,    *     *    *    and 
be  subject  to  the  rules  and  Articles  of  War.     (Act  of  Aug.  29,  1916, 
:..  626.)]  . 
[Note  2. — Inmates  of  the  Soldiers'  Homo  (R.  S.  4824),  the  National  Homo  for 
Disabled  Volunteer  Soldiers  (R.  s.  is:;r>),  all  persons  admitted  to  treatment  in 
I  Hospital  :•!   Fori   Bayard,  New  Mexico,  while  patients  In  said  hos- 
]  ■■     of  June  12,  )'"»'<.  34  Stat.,  255),  and  all  persons  admitted  to  treat- 

In  the  Army  and  Navy  General  Hospital  at  Hoi  Springs,  Arkansas,  while 
os  iii  said  hospital  (ad  of  Mar.  :'..  1909,  35  Stat,  7is>.  are  by  th<   statutes 
Bubjecl  i"  the  rules  and  articles  for  the  governmenl  of  the  armies  of 
martial  jurisdiction  over  them  ha.s  rarely,  if  ever, 
ed.  I 


CHAPTER  II. 
COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. 


Paga 

Section  I :  Classification 5 

5.  Kinds 5 

(«)  General  courts-martial 5 

(b)  Special  courts-martial 5 

(c)  Summary  courts-martial 5 

Section  II:  Composition 6 

6.  Who  competent  to  serve 6 

Exceptions — 

(a)  Accuser  or  witness  for  prosecution 6 

(6)  Officers  excepted  by  custom 6 

7.  Number  of  members 6 

(a)  General  courts-martial 6 

Reduction  below  quorum — Report  by  judge  advocate 6 

(b)  Special  courts-martial 7 

Reduction  below  quorum 7 

(c)  Summary  courts-martial 7 

8.  "Officer"  defined 7 

9.  "In  the  military  service  of  the  United  States " 7 

(a)  Officer  suspended  from  rank 7 

(6)  Retired  officers 7 

(c)  Volunteers.  Officers'  Reserve  Corps,  persons  called,  drafted,  or 

ordered  into  service 7 

10.  Marine  officers 8 

11.  No  distinction  between  Regulars  and  other  forces 8 

12.  Rank  of  members 8 

(a)  Trial  by  inferiors  in  rank 8 

(6)  Determination  of  rank  among  Regulars  and  other  forces 8 

13.  Who  may  be  tried 8 


Section  I. 

CLASSIFICATION. 

5.  Kinds. — Courts-martial  shall  be  of  three  kinds  (A.  W.  3),  viz: 
(a)   General  courts-martial; 
(h)   Special  courts-martial ;  and 
(c)   Summary  courts-martial. 

[Note.— The  classification  of  courts-martial  adopted  by  the  code  of  1916  Is 
Identical  with  that  made  by  the  act  of  March  l(,  1913  (37  Statu,  721),  which 
abolished  garrison  and  regimental  courts-martial  and  created  special  courts- 
martial  ] 

5 


6  MANUAL  FOR  COURTS-MARTIAL. 

Section  II. 
COMPOSITION. 

6.  Who  competent  to  serve. — All  officers  in  the  military  service  of  the 
United  States,  and  officers  of  the  Marine  Corps  when  detached  for 

c   with  the  Army   by  order  of  the  President,  shall  be  com- 
t  (d  Berve  on  courts-martial  for  the  trial  of  any  who 

may  lawfully  he  brought  before  such  courts  for  trial.     (A.  W.  4.) 

Exceptions. —  (a)  No  officer  shall  be  eligible  to  sit  as  a  member  of  a 
general  <>r  special  court-martial  when  he  is  the  accuser  or  a  witness 
for  the  prosecution  (A.  W.  8,  9)  ;  but  when  there  is  only  one  officer 
present  with  a  command  he  shall  l>e  the  summary  court-martial  of 
that  command  and  shall  hear  and  determine  cases  brought  before 
him  (A.  W.  10).  [See  chapter  8,  sec.  1,  par.  129.]  (b)  Chaplains, 
reterinarians,  dental  surgeons,  and  second  lieutenants  in  the  Quarter- 
master Corps  are  not  in  practice  detailed  as  members  of  courts- 
martial. 

7.  Number  of  members. — Courts-martial  shall  be  composed  of  the 
following  number  of  officers  (A.  W.  5,  6,  7),  viz: 

(a)  General  courts-martial. — Any  number  from  5  to  13,  inclusive. 

A  general  court-martial  shall  not  consist  of  less  than  13  officers  when 
that  number  can  be  convened  without  manifest  injury  to  the  service. 
(A.  W.  5.)  The  Articles  of  War  (A.  W.  5,  6)  governing  the  number 
of  members  which  may  sit  upon  a  general  or  a  special  court-martial 
are  merely  directory  to  the  officer  appointing  the  court,  and  his  de- 
cision as  to  the  number  which  can  be  convened  without  manifest  injury 
totheservice  (within  the  maximum  and  minimum  limits  prescribed  by 
law), being  a  matter  submitted  to  his  sound  discretion,  must  be  conclu- 
sive. (Martin  /•.  Molt.  1:2  Wheaton,  35;  see  also  Mullan  v.  U.  S.,  140 
U.  S.,  240.)  "While  a  number  less  than  five  can  not  be  organized 
general  court-martial  or  proceed  with  a  trial,  they  may  perforin  such 
acts  as  are  preliminary  to  the  organization  and  action  of  the  court. 
than  five  members  may  adjourn  from  day  to  day,  and  where 
five  are  present  and  one  of  them  is  challenged,  the  remaining  four 
may  determine  upon  the  sufficiency  of  the  objection.  A  court 
reduced  t<>  four  members  and  thereupon  adjourning  for  an  indefi- 
period  does  not  dissolve  itself.  The  appointing  authority  may 
at  any  time  complete  it  by  the  addition  of  a  new  member  or  mem- 
bers and  order  il  to  reassemble  for  business.  (Digest,  p.  158,  LXX  V 
I'.  -".  i.  but  if  any  evidence  has  been  taken  before  the  court  is  reduced 
below  five,  it  should  be  dissolved  and  a  new  one  ordered. 

If  for  any  reason  a  general  court-martial  is  reduced  below  five 
members  it  will  direct  the  judge  advocate  to  report  the  facts  to  the 
convening  authority  and  wait  his  orders.  The  report  by  the  judge 
advocate  will,  in  all  cases,  be  made  through  the  commanding  officer 


COURTS-MABTIAL CLASSIFICATION COMPOSITION.  r? 

of  tin-  post,  command,  or  station  where  the  court  is  setting,  who  w3I 
indorse  thereon  the  names  of  a  sufficient  number  of  available  officers 
whom  he  recommends  be  detailed  on  the  court  to  enable  it  to  proceed, 
More  than  enough  to  make  a  quorum  should  be  recommended  where 
practicable  in  order  to  provide  for  future  contingencies,  and  so  far 
as  can  be  foreseen  the  officers  recommended  should  not  be  liable  to 
challenge  in  any  case  to  be  tried.  If  there  be  no  such  officer  or  officers 
available,  the  commanding  officer  will  so  state.  This  report  will  be 
made  by  wire  whenever  deemed  advisable  in  order  to  prevent  unneces- 
sary delay  in  trying  cases.  Similar  action  will  be  taken  before  trial 
by  the  judge  advocate  and  commanding  officer  whenever  the  former 
knows  or  has  good  reason  to  believe  that  the  court  will  be  reduced 
below  a  quorum  at  the  time  of  trial.  It  is  the  duty  of  commanding 
officers  to  keep  in  touch  with  the  business  before  general  courts- 
martial  being  held  within  the  limits  of  their  commands  and  from 
time  to  time  to  take  the  initiative  in  making  recommendations  to  the 
appointing  authority  as  to  relieving  or  adding  members,  changing 
the  judge  advocate,  or  appointing  a  new  court,  and  as  to  other  mat- 
ters relating  to  such  courts,  so  that  they  may  proceed  expeditiously 
and  in  cooperation  with  other  official  business. 

(b)  Special  courts-martial. — Any  number  of  officers  from  three  to 
five,  inclusive. 

The  remarks  under  (a)  ante  apply  equally  to  a  special  court-mar- 
tial where  its  membership  is  reduced  below  the  minimum  required  by 
law,  except  that  in  the  case  of  special  court-martial  the  report  by  the 
judge  advocate  will  be  made  to  the  convening  authority,  who  will, 
without  unnecessary  delay,  detail  a  sufficient  number  of  qualified 
' :s  to  enable  it  to  proceed  or  appoint  a  new  court. 

(c)  Summary  courts-martial. — A  summary  court-martial  shall  con- 
sist of  one  officer.     (C.  M.  C.  M.,  No.  1.) 

8.  "  Officer"  defined. — The  word  "  officer"  when  used  in  the  Articles 
of  War  or  this  Manual  means  commissioned  officer.     (A.  W.  1.) 

9.  "  In  the  military  service  of  the  United  States." — (a)  An  officer  sus- 
pended from  rank  should  not  be  detailed  to  sit  as  a  member  of  a 
court-martial  during  the  period  of  suspension. 

(h)  A  retired  officer  may  be  assigned  with  his  consent  to  active  duty 
upon  courts-martial  in  time  of  peace  (act  of  Apr.  23,  1904,  33  Stat,, 
264),  and  if  employed  on  active  duty  in  time  of  war  in  the  discretion 
of  ihc  President  (sec.  24,  act  of  June  3,  191*6,  39  Stat.,  183),  he  is 
eligible  for  court-martial  duty.  At  other  times  he  is  not  available  for 
such  duty  except  that  when  placed  in  command  of  a  post  under  the 
act  of  August  29, 1916  (39  Stat.,  627),  or  when  assigned  to  recruiting 
duty  he  may  act  as  summary  court-martial  when  he  is  the  only  officer 
26  and  27.) 

(c)  Volunteers  become  eligible  for  duty  as  members  of  courts- 
martial  from  the  dates  of  their  muster  or  acceptance  into  the  military 
service  of  the  United  States  (A.  W.  2),  members  of  the  Officers' 
Reserve  Corps  ordered  to  active  service  by  the  Secretary  of  War  (sec 


8  MANUAL  FOR  COURTS-MARTIAL. 

S8,  ad  of  June  8,  L916,  39  Stat,  191),  and  all  other  officers  lawfully 
called,  drafted,  or  ordered  into,  or  to  duty  or  for  training  in,  the  said 
Lee,  from  the  date  they  are  required  b3'  the  terms  of  the  call,  draft, 
or  order  t<>  obey  the  same  (A.  W.  2). 

10.  Marine  officers. — Marine  officers  can  be  detached  for  duty  with 
the  Army  only  by  order  of  the  President  (11.  S.  1619,  1621),  and 
their  eligibility  to  sit  as  members  of  courts-martial  to  try  persons 
subject  to  military  law  continues  only  during  the  time  they  are  serv- 
ing under  Mich  order.    When  any  part  of  the  Marine  Corps  is  pres- 

>  ith  the  Army  and  engaged  in  a  common  enterprise  with  it, 

without  an  order  of  the  President  detaching  it  for  service  with  the 

Army,  the  case  is  one  of  cooperation  and  not  of  incorporation,  and 

•h  a  case  no  officer  of  the  Marine  Corps  can  exercise  command 

the  Army  any  more  than  a  naval  officer  can  when  some  part  of 

NTavy  is  cooperating  with  the  Army,  and  the  converse  is  true  of 

Army  officers  cooperating  with  the  Marine  Corps.     (28  Op.  Atty. 

Gen.,  15.) 

11.  No  distinction  between  Regulars  and  other  forces. — No  distinction 

s  in  the  matter  of  eligibility  for  court-martial  duty  among 
the  various  classes  of  officers  in  the  military  service  of  the  United 
States  for  the  trial  of  any  person  subject  to  military  law.  (Act  of 
Apr.  25,  1014,  38  Stat.,  348;  A.  W.  4.) 

12.  Rank  of  members. —  (a)  The  order  appointing  a  general  or  a 
,1  court-martial  should  name  the  members  in  order  of  rank,  and 

they  will  sit  according  to  rank. 

In  no  case  shall  an  officer,  when  it  can  be  avoided,  be  tried  by 
officers  inferior  to  him  in  rank.  (A.  "VV.  16.)  This  provision  (like 
that  in  reference  to  the  number  of  members  of  a  general  or  special 
court-martial  considered  in  paragraph  7,  ante)  is  not  prohibitory  but 
directory  only  upon  the  convening  authority.  Its  effect  is  to  leave 
to  the  discretion  of  that  officer,  as  the  conclusive  authority  and  judge, 
the  determination  of  the  question  of  the  rank  of  the  members,  with 
only  the  general  instruction  that  superiors  in  rank  to  the  accused 
shall  be  selected,  so  far  as  the  exigencies  and  interests  of  the  sen  Lee 
vv  ill  permit.     (Mullan  y.  IT.  S.,  140  U.  S.,  240.) 

(b)  Rank  among  officers  of  the  Regular  Army,  Eorces  drafted  or 
called  into  the  ser\  ice  of  the  United  States,  and  Volunteers  is  deter- 
mined according  to  the  rules  laid  down  in  A.  W.  110. 

13.  Who  may  be  tried. —  (a)  For  the  jurisdiction  of  general,  special, 
and  summary  courts-martial  as  to  persons  see  Chapter  IV,  Juris- 
diction. 

(b)  In  addition  to  the  persons  subject  to  military  law  enumerated 
in  Chapt  Ion  II T.  ante,  the  general  court-martial  also  has 

jurisdiction  over  any  other  person  who  by  the  law  of  war  is  subject 
to  trial  bj  military  tribunals     (A.  W.  12  ;  see  Chap.  IV,  Jurisdiction.) 


CHAPTER  III. 
COURTS-MARTIAL— BY  WHOM  APPOINTED. 


Page. 

Section  I:  General  courts-martial 9 

14.  Authorities  enumerated,  (a)  to  (i) _. 9 

Exceptions — 

(1)  Appointing  authority  as  accuser  or  prosecutor 10 

(2)  Superintendent  of  Military  Academy 10 

15.  Tower  of  President  to  appoint 10 

16.  Same  for  Superintendent  of  Military  Academy 10 

17.  "Accuser "  or  "prosecutor "  defined 10 

18.  Power  to  appoint  an  attribute  of  command 11 

19.  Punk  of  appointing  authority 12 

20.  Tower  of  appointing  authority — How  limited 12 

Section  II :  Special  courts-martial 12 

21.  Authorities  enumerated,  (a)  to  (i) 12 

Exception — Appointing  authority  a3  accuser  or  prosecutor 12 

22.  Commanding  officer  as  accuser  or  prosecutor 12 

23.  Tank  of  appointing  authority 13 

24.  Commanding  officer  as  member 13 

Section  III:  Summary  courts-martial 13 

25.  Authorities  enumerated,  (a)  to  (/j) 13 

26.  "When  more  than  one  officer  present 13 

27.  When  but  one  officer  present 14 

28.  "Detachment"  defined 14 

29.  Power  of  brigade  commanders 14 

Section  IV:  Judge  Advocate. 

30.  Power  to  appoint 15 

31.  Duties 15 


Section  I. 
GENERAL  COURTS-MARTIAL. 

14.  Authorities  enumerated. — General    courts-martial  may  be  ap- 
pointed by  the  following  authorities  (A.  "W.  8),  viz: 

(a)  The  President  of  the  United  States. 

(b)  The  commanding  officer  of  a  territorial  division. 

(c)  The  commanding  officer  of  a  territorial  department. 
('/)  The  Superintendent  of  the  Military  Academy. 

(e)  The  commanding  officer  of  an  army. 

(/)  The  commanding  officer  of  an  army  corps. 


10  MANUAL  FOR  COT7BTS-MABTIAL. 

(,/)  The  i  ing  officer  of  a  (tactical)  division, 

manding  officer  of  a  separate  brigade. 
The  commanding  officer  of  any  district  or  of  any  force  or 
body  of  troops,  when  empowered  by  the  President  to  d< 
Exceptions. — (1)  When  any  of  the  foregoing  commanders  is  th® 
■v  or  the  prosecutor, of  the  person  or  persons  to  be  tried,  the 
court  Bhall  be  appointed  by  superior  competent  authority;  (2)  the 
Superintendent  of  the  Military  Academy  is  not  empowered  to  con- 
vene  a  general  court-martial  for  the  trial  of  an  officer.     (A.  W.  12.) 
[Note.— For  the  authority  to  appoint  general  court-martial  in  the  National 
cot  in  Uk"  service  of  the  United  States,  see  see.  K>3  act  of  June  3,  1016, 

[>0**.] 

15.  Power  of  the  President  to  appoint.— In  addition  to  the  general 
statutory  authority  conferred  upon  the  President  by  A.  W.  8  to  ap- 
point general  courts-martial  he  is  also  empowered  to  do  so  by  virtue 
of  I  »eing  Commander  in  Chief  of  the  Army  (Swain  v.  U.  S.,  165  U.  S., 

and  in  the  particular  case  provided  for  by  R.  S.  1230. 

[Note.— When  any  officer,  dismissed  by  order  of  the  President,  makes,  in 

writing,  an  application  for  trial,  setting  forth,  under  oath,  that  he  lias  been 

jfully  dismissed,  the  President  shall,  as  soon  as  the  necessities  of  the 

■    may    permit,    convene    a    court-martial    to    try    such    officer    on    the 

charges  on  which  he  shall  have  been  dismissed.    And  if  a  court-martial  is  not 

mvened  within  six  months  from  the  presentation  of  such  application  for 

trial,  or  if  such  court,  being  convened,  does  not  award  dismissal  or  death  aa 

of  such  officer,  the  order  of  dismissal  by  the  President  shall  be 

veld.     (B.  S.  1230.)     See  also  A.  W.  118.] 

16.  Superintendent  of  the  Military  Academy. — The  Superintendent  of 
the  Military  Academy  was  authorized  by  R.  S.  1326  to  convene  gen- 
eral courts-martial  for  the  trial  of  cadets  only;  the  act  of  March  2, 
1913  (37  Stat.,  722),  extended  this  authority  to  include  all  persons 

pt  officers)  subject  to  military  law  under  his  command.     Thi* 
authority  «  as  continued  in  the  Code  of  1916.     (A.  W.  8,  12.) 

17.  "Accuser  "  or  "  prosecutor." — Whether  the  commander  who  con- 
vened the  court  is  to  be  regarded  as  the  "accuser  or  prosecutor" 
where  he  has  had  to  do  with  the  preparing  and  preferring  of 
the  charges,  is  mainly  to  be  determined  by  his  animus  in  the  mat- 
ter. He  may,  like  any  other  officer,  initiate  an  investigation  of  an 
officer's  conduct  and  formally  prefer,  as  his  individual  act,  charges 

•licer;  or  by  reason  of  a  personal  interest  adverse  to  the 
accused  he  may  adopt  practically  as  his  own  charges  initiated  b; 
other;  in  which  cases  he  is  clearly  the  accuser  or  prosecutor  within 
the  article.  On  the  other  hand,  it  is  his  duty  to  determine,  when  the 
facts  are  brought  to  his  knowledge,  whether  an  officer  within  his  com- 
mand  charged  with  a  military  offense  shall  in  the  interest  of  disci- 
pline and  for  the  good  of  the  service  be  brought  to  trial.  To  this 
end  I  >rmally  refer  or  revise  or  cause  to  1  d  and  then 

formally  _es  preferred  against  such  officer  by  another; 


COUETS-MAKTIAL, BY   WHOM   APPOINTED.  11 

or  when  the  facts  of  an  alleged  offense  are  communicated  to  him,  he 
may  direct  a  suitable  officer,  as  a  member  of  his  staff,  or  the  proper 
commander  of  the  accused,  to  investigate  the  matter,  formulate  and 
prefer  such  charges  as  the  facts  may  warrant,  and  having  been  sub- 
mitted to  him,  he  may  revise  and  refer  them  for  trial  as  in  other 
cases;  all  this  he  may  do  in  the  proper  performance  of  his  official  duty 
without  becoming  the  accuser  or  prosecutor  in  the  case.  Of  course,  he 
can  not  be  deemed  such  accuser  or  prosecutor  where  he  causes  charges 
to  be  preferred  and  proceeds  to  convene  the  court  by  direction  of  the 
Secretary  of  War  or  a  competent  military  superior.  (Digest,  p.  154, 
LXXII,  I,  1.)  It  is  not  essential  that  the  commander  who  convenes 
the  court-martial  for  the  trial  of  an  officer  should  sign  the  charges 
to  make  him  the  "accuser  or  prosecutor"  within  the  meaning  of  this 
article.  Nor  is  the  fact  that  they  have  been  signed  by  another  con- 
clusive on  the  question  whether  the  convening  commander  is  the 
actual  accuser  or  prosecutor.  The  objection  that  such  commander  is 
such,  calls  in  question  the  legal  constitution  of  the  court,  and  while 
such  objection,  if  known  or  believed  to  exist,  should  regularly  be  in- 
terposed at  or  before  the  arraignment  it  may  be  taken  during  the  trial 
at  any  stage  of  the  proceedings.  If  not  admitted  by  the  prosecution 
to  exist,  the  accused  is  entitled  to  prove  it  like  any  other  issue.  (For 
decisions  as  to  when  the  convening  authority  is  the  accuser  or  prose- 
cutor, see  Digest,  p.  155,  LXXII,  I,  1,  a;  p.  155,  LXXII,  I,  2;  p. 
156,  LXXII,  I,  3,  a;  p.  156,  LXXII,  I,  3  a  (1).) 

18.  Power  to  appoint  an  attribute  of  command. — As  the  authority  to 
appoint  general  courts-martial  is  an  attribute  of  command,  a  com- 
manding officer  can  not  delegate  to  another  officer  such  as  his  adju- 
tant or  any  other  staff  officer  or  subordinate  the  authority  to  appoint 
a  court,  detail  an  additional  member,  or  relieve  a  member.  If  the 
authority  to  appoint  a  general  court-martial  is  vested  by  law  in  a 
commanding  officer  he  retains  that  authority,  wherever  he  may  be, 
so  long  as  he  continues  to  be  such  commanding  officer.  In  the  absence 
of  orders  or  legislation,  personal  presence  within  the  territorial  limits 
of  his  department  is  not  essential  to  the  validity  of  commands  given 
by  a  department  commander  to  be  executed  within  the  department. 
Therefore  he  may  appoint  a  court-martial  while  absent  from  his 
department  if  he  continues  to  exercise  command.  But  a  depart- 
ment commander  detached  and  absent  from  his  command  for  any 
considerable  period  by  reason  of  having  received  a  leave  of  absence 
(whether  of  a  formal  or  informal  character),  or  having  been  placed 
upon  a  distinct  and  separate  duty,  is  held  to  be  in  a  status  incom- 
patible with  a  full  and  legal  exercise  of  such  authority  and  therefore 
Incompetent  during  such  absence  to  order  a  general  court-martial 
as  department  commander,  even  though  no  other  officer  has  been 


12  MWL  FOR  COUBIS-MABTIAL. 

med    or  has  succeeded   to  the  command   of  the   department. 
5t,p.  153,  LXXII,  A.) 

19.  Rank  of  appointing  authority. — The  power  of  the  various  com- 
manders  enumerated  in  paragraph  11.  supra,  to  appoint  genera] 
courts-martial  is  independent  of  their  rank,  but  no  officer  other  than 
those  enumerated  can  appoint  a  general  court-martial  no  matter 
what  his  rank  may  be.  An  officer  who  succeeds  to  any  command 
or  duly  stands  in  regard  to  his  duties  in  the  same  situation  as  his 
predecessor.  (A.  R.  17.)  In  the  event  of  the  death  or  disability 
of  tlie  permanent  commander  of  a  territorial  department,  or  his 
temporary  absence  from  the  limits  of  his  command,  the  senior  line 

and  on  duty  therein  will  exercise  the  command  of  the 
department,  unless  otherwise  ordered,  until  relieved  by  proper  au- 
thority.    (A.  R.  1'. »('..) 

20.  Power  of  appointing  authority,  how  limited. — An  officer  who  has 
power  to  appoint  a  court-martial  may  control  its  existence,  dissolve 
it.  and  determine  the  cases  to  be  referred  to  it  for  trial,  but  he  can 
not  control  the  exercise  by  the  court,  of  powers  vested  in  it  by  law. 

Section  II. 
SPECIAL  COURTS-MARTIAL. 

21.  Authorities  enumerated. — Special  courts-martial  may  be  ap- 
pointed by  the  following  authorities  (A.  W.  0),  viz: 

(a)  The  commanding  officer  of  a  district. 

(b)  The  commanding  officer  of  a  garrison. 

(c)  The  commanding  officer  of  a  fort. 
(<7)  The  commanding  ofiicer  of  a  camp. 

(e)  The  commanding  officer  of  any  place  other  than  (a),  (?>),(<?), 
and  (d)  where  troops  are  on  duty. 

(/)  The  commanding  officer  of  a  brigade. 

('/)  The  commanding  officer  of  a  regiment. 

(h)   The  commanding  officer  of  a  detached  battalion. 

(i)  Tin-  commanding  officer  of  any  other  detached  command. 

Exception. — When  any  one  of  tl  ing  commanding  officers 

is  th<  .or  of  the  person  or  persons  to  be  tried, 

irl  -hall  be  appointed  by  superior  authority. 

When  any  superior  authority  deei,  able,  he  may  appoint 

a  special  court-martial  for  any  part  of  his  command. 

[N(  he  authority  1<>  ap  clal  courts-martial  in  Hie  National 

Guard  aol  in  th<  the  United  suites,  sec  sec.  104,  art  of  June  ::.  1316, 

€  ;  Appendix  2,  poi  i.\ 

22.  Commanding'  officer  as  "accuser  or  prosecutor." — The  rules  laid 
dov  ii  in  Section  1.  paragraph  1798upra,  for  determining  when  a  com- 
mander is  the  accuser  or  prosecutor  apply  equally  to  trials  by  special 


COURTS-MARTIAL BY    WHOM   APPOINTED.  13 

courts-martial.  When  a  superior  appoints  a  court  because  of  such 
disqualification  on  the  part  of  a  subordinate  commanding  officer,  he 
will  specify  in  the  order  the  names  of  the  person  or  persons  to  be 
tried,  and  the  court  will  adjourn  sine  die  upon  the  completion  of  the 
last  case  which  it  is  ordered  to  try. 

23.  Sank  of  appointing  authority. — As  in  the  case  of  general  courts- 
martial,  the  test  of  the  power  to  appoint  a  special  court-martial  is 
whether  the  officer  is  one  of  the  commanders  designated  in  A.  "VV.  9. 
Such  authority  is  an  incident  of  his  power  to  command,  and  is  in- 
dependent of  his  rank. 

24.  Commanding  officer  as  member. — When  but  two  officers  in  addition 
to  the  commanding  officer  are  available  for  detail  on  a  special  court- 
martial,  the  commanding  officer  will  not  detail  himself  as  a  member 
of  such  court.  In  such  a  case,  if  superior  authority  desires  to  ap- 
point a  special  court-martial  for  such  command,  the  commanding 
officer,  if  otherwise  eligible,  may  be  appointed  as  a  member  thereof. 

Section  III. 
SUMMARY  COURTS-MARTIAL. 

25.  Authorities  enumerated- — Summary  courts-martial  may  be  ap- 
pointed by  the  following  authorities  (A.  W.  10),  viz: 

(a)  The  commanding  officer  of  a  garrison. 

(b)  The  commanding  officer  of  a  fort. 
(e)   The  commanding  officer  of  a  camp. 

(d)  The  commanding  officer  of  any  other  place  not  enumerated  in 

(a),  (5),  and  (c)  where  troops  are  on  duty. 

(e)  The  commanding  officer  of  a  regiment. 

(/)   The  commanding  officer  of  a  detached  battalion. 

(g)  The  commanding  officer  of  a  detached  company. 

(A)  The  commanding  officer  of  any  other  detachment  not  enumer- 
ated in  (/)  and  (g). 

A  summary  court-martial  may  in  any  case  be  appointed  by  su- 
perior authority  when  by  the  latter  deemed  desirable. 

[Note. — For  the  authority  to  appoint  summary  courts-martial  in  the  National 
Guard  not  in  the  service  of  the  United  States,  see  sec.  105,  act  of  June  3,  1916, 
39  Stat,  208;  Appendix  2,  post.] 

26.  When  more  than  one  officer  present. — When  more  than  one  officer 
is  present  the  summary  court-martial  will  be  appointed  from  staff 
officers  or  available  line  officers  junior  to  the  commanding  officer. 
The  commanding  officer  will  not  in  such  cases  designate  himself  as 
the  summary  court-martial.  The  senior  officer  on  duty  at  a  recruit- 
ing station  is  a  "  commanding  officer  "  in  the  sense  of  the  last  pre- 
ceding sentence  when  there  is  another  officer  present  at  the  same 
station,  even  though  the  latter  may  be  serving  at  an  auxiliary  or 
branch  station.     (Bui.  40,  War  Dept,  Oct.  24,  1914.) 


l[  MANUAL  FOE  COniT.S  -MAUJ  1AL. 

27.  When  but  one  officer  present. — When  but  one  officer  is  present 
with  b  command  tie  shall  he  the  summary  court-martial  of  thai  com- 

,  and  shall  hear  and  determine  cases  brought  before  him.  (A.  W. 

in.  i     in  Buch  a  case,  no  order  appointing  the  court  will  be  issued 
i  he  officer  will  enter  on  the  record  that  he  is  the  'conly  office] 
I   with  the  command."     (As  to  retired  officers,  see  pur.  9,  h.) 

28.  "  Detachment  "  denned. — A  battalion  or  other  unit  is  "  detached  " 
when  isolated  <>r  removed  from  the  immediate  disciplinary  control 
of  a  superior  of  the  same  branch  of  the  service  in  such  a  manner  i 
make  its  commander  primarily  the  one  to  be  looked  to  by  superior 
authority  as  the  officer  responsible  for  the  administration  of  the  dis- 
cipline of  the  enlisted  men  composing  the  same.  The  term  is  used 
in  a  disciplinary  sense,  and  is  not  necessarily  limited  to  what  con- 
stitutes detachment  in  a  physical  or  tactical  sense.  The  commanding 
officers  of  such  units  as  field  signal  battalions,  aero  squadrons,  field 
bakeries,  and  ammunition,  engineer,  or  sanitary  trains,  if  their  re- 
spective commands  are  independent,  except  in  so  far  as  they  consti- 
tute parts  of  a  division,  and  if  their  commanders  are  responsible 
directly  to  the  division  commander  for  the  maintenance  of  discipline 
in  those  commands,  are  competent  to  appoint  summary  courts  for 
the  same,  subject  to  the  power  of  the  division  commander  to  appoint 
summary  courts  for  all  subordinate  organizations  and  detachments 
under  his  command  if  by  him  deemed  advisable. 

So  likewise  the  various  service  schools,  such  as  the  Mounted  Service 
School  at  Fort  Riley,  though  they  may  be  located  within  the  imme- 
diate limits  of  higher  commands,  constitute  "detachments"  wuthin 
the  meaning  of  A.  W.  10,  and  the  commandants  thereof  have  power 
to  appoint  summary  courts-martial  for  the  trial  of  enlisted  men 
connected  with  such  schools,  subject  to  the  right  of  the  commanding 
officer  «d'  the  garrison  or  fort  to  appoint  such  courts  when  by  him 
deemed  desirable.    (  BuL  13,  War  Dept..  1913,  p.  7.) 

29.  Power  of  brigade  commanders. — A  brigade  commander  is  respon- 
sible for  the  instruction,  tactical  efficiency  and  preparedness  for  war 

Lee  of  his  brigade.  ( A.  R.  194.)  If  the  brigade  is  serving  at  one 
garrison  or  post  he  lias,  by  virtue  of  his  power  as  such  garrison  or 
po  i  commander,  authority  to  retain  within  himself  the  appointing 
power  <>f  all  summary  courts  w  [thin  his  command,  but  if  he  does  not 
exercise  the  authority  which  is  vested  in  him  by  statute  he  allows  the 
appointing  power,  including  the  power  of  review,  to  pass  to  regi- 
mental (and  detachment)  commanders.  (Digest, p.  580, XVI, E, 7.) 
If  the  brigade  is  acting  as  a  tactical  unit  in  the  field,  lie  may  as  su- 
»r  authority,  appoint  summary  courts-martial  for  his  command 
whenever  he  deems  it  desirable,  but  such  authority  will  ordinarily  be 
exercised  by  the  regimental  commanders. 


COURTS-MARTIAL BY   WHOM   APPOINTED.  15 

Section  IV. 
JUDGE  ADVOCATE. 

30.  Power  to  appoint. — For  each  general  or  special  court-martial  the 
authority  appointing  the  court  shall  appoint  a  judge  advocate,  and 
for  each  general  court-martial  one  or  more  assistant  judge  advocates 
when  necessary.  (A.  W.  11.) 

31.  Duties  of  judge  advocate  and  assistant  judge  advocates. — For  dis- 
cussion of  the  duties  of  the  judge  advocate  and  his  assistants  see 
Chapter  VII,  Sections  II  and  III. 


CHAPTER  IV. 
COURTS-MARTIAL— JURISDICTION. 


Page. 

Section  I :  Jurisdiction  in  general 17 

32.  Jurisdiction  denned 17 

33.  Courts-martial  not  part  of  Federal  judicial  system 18 

34.  Conditions  necessary  to  show  jurisdiction 18 

35.  Procedure  when  military  and  civil  jurisdiction  concurrent 19 

36.  Can  not  be  divested  by  act  of  accused 20 

37.  Not  territorial 20 

38.  When  terminated— Rule  stated 20 

Exceptions  (a)  to  (e) 20 

Section  II :  Jurisdiction  of  general  courts-martial 21 

39.  Persons  and  offenses 21 

40.  Limits  of  punishment — Exception 21 

Section  III:  Jurisdiction  of  special  courts-martial 22 

41.  Persons  and  offenses 22 

42.  limits  of  punishment 22 

Section  IV:  Jurisdiction  of  summary  courts-martial 22 

43.  Persons  and  offenses 22 

44.  Limits  of  punishment 23 

Section  V:  Jurisdiction  cf  other  military  tribunals 23 

4'j.  When  concurrent  with  corals-martial 23 


Section  I. 

JURISDICTION  IN  GENERAL. 

32.  Jurisdiction  defined—  The  jurisdiction  of  a  court-martial  is  its 
power  to  try  and  determine  cases  legally  referred  to  it  and,  in  case 
of  a  rinding  of  guilty,  to  award  a  punishment  for  the  offense  within 
its  prescribed  limits.  Being  courts  of  special  and  limited  jurisdiction 
their  organization,  powers,  nnd  mode  of  procedure  must  conform  to 
all  the  statutory  provisions  relating  to  their  jurisdiction.  (For  the 
source  and  kinds  of  military  jurisdiction  and  persons  subject  to  mili- 
tary !:  *ap.  I,  Sees.  I  and  III.) 

L5°— 18 3  17 


18  MANUAL  FOB  COURTS- MAKTIAL. 

33.  Courts-martial  not  part  of  Federal  judicial  system. — "While  courts- 

tial  have  do  pari  of  the  jurisdiction  set  apart  under  the  art 

of  the  Constitution  which  relates  to  the  judicial  power  of  the  United 

a  they  have  an  equally  certain  constitutional  source.    The 

Lished  under  the  constitutional  power  of  Congress  to  make  ' 

:  le  government  and  regulation  of  the  land  forces  of  the  Ui 

•-.  and  are  recognized  in  the  provisions  of  the  fifth  amendment 

3sl     exempting  "ci  ig  in  the  land  and  naval   for© 

the  requirement  as  to  :>t  and  indictment  by  grand 

v  tribunals  appointed  by  military  orders  issued  under 

authority  of  law.    The  power  to  appoint  them,  as  well  as  the  power 

;  upon  their  proceedings,  is  vested  by  law  in  certain  command- 

rs.    Their  jurisdiction  is  entire/;/  criminal.    They  have  no 

r  to  adjudge  damage  for  personal  injuries  or  private  wrongs, 

nor  to  collect  private  debts.    Their  judgments  upon  subjects  within 

their  limited  jurisdiction,  when  duly  approved  or  confirmed,  are  as 

1  as  those  of  any  other  tribunals.     No  appeal  can  be 

•  them,  nor  can  they  be  set  aside,  or  reviewed  by  the  courts 

of  the  United  States,  nor  of  any  State,  but  United  States  courts  may, 

rit  of  habeas  corpus,  inquire  into  the  legality  of  detention  of  a 

on  held  by  military  authority,  at  any  time,  either  before  or 

during  trial  or  while  serving  sentence,  and  will  order  him  discharged 

if  it  appears  to  the  satisfaction  of  the  court  that  any  of  the  statutory 

rements  conferring  jurisdiction  have  not  been  fulfilled.    Their 

sentences  have  in  themselves  no  legal  effect  until  they  have  received 

the   approval   or  confirmation  of  the  proper  commanding   officer. 

With  such  approval  or  confirmation,  however,  their  sentences  become 

itive  and  are  as  effective  as  the  sentences  of  civil  courts  having 

criminal  jurisdiction,  and  are  entitled  to  the  same  Legal  consideration. 

34-  Conditions  necessary  to  show  jurisdiction. — The  jurisdiction  of 

i-wry  court-martial,  and  hence  the  validity  of  each  of  its  judgments, 

is  conditioned  upon  these  indispensable  requisites: 

rhat  it  was  convened  by  an  officer  empowered  by  statute  to 
appoint  it. 

(b)  That  the  persons  who  sat  upon  the  court  were  legally  com- 
petent to  do  so. 

(c)  That  the  court  thus  constituted  was  invested  by  the  acts  of 
less  with  power  to  try  the  person  and  the  offense  charged. 

)  That  its  sentence  was  in  accordance  with  law. 
••  Persons,  then,  belonging  to  the  Army  and  the  Navy  are  not  sub- 
to  illegal  or  irresponsible  courts-martial,  when  the  law  for  con- 
vening them  and  directing  their  proceedings  of  organization  and  for 
trial  have  been  disregarded.  In  such  cases,  everything  which  may 
be  done  is  void— not  voidable,  but  void;  and  civil  courts  have  never 
failed,  upon  a  proper  suit,  to  give  a  party  redress,  who  has  been 


COURTS-MARTIAL JURISDICTION".  19 

injured  by  a  void  process  or  void  judgment.  *  *  *  When  we 
speak  of  'proceedings  in  a  cause,  or  for  the  organization  of  the  court 
and  for  trials,  we  do  not  mean  mere  irregularity  in  practice  on  ths 
trial,  or  any  mistaken  rulings  in  respect  to  evidence  or  law,  but  a  dis- 
regard of  the  essentials  required  by  the  statute  under  which  th& 
court  has  been  convened  to  try  and  to  punish  an  offender  for  an 
imputed  violation  of  the  law."  (Dynes  v.  Hoover,  01  U.  S-,  81 ;  see 
also  Doming  v.  McClaughry,  113  Fed.  Rep.,  050;  McClaugLr 
Deming,  ISO  U.  S.,  03;  Mullan  v.  United  States,  140  U.  S„  240;  Ex 
parte  Tucker,  212  Fed.  Rep.,  509;  and  A.  W.  37.) 

35.  Procedure  when  military  and  civil  jurisdiction  concurrent. — Courts- 
martial  have  exclusive  jurisdiction  to  try  persons  subject  to  military 
law  for  all  purely  military  crimes  and  offenses;  they  have  concurrent 
jurisdiction  with  the  proper  civil  courts  to  try  such  persons  for 
civil  crimes  and  offenses  denounced  and  punished  under  A.  W.  92, 
93,  91,  and  90.  (For  limitation  as  to  the  crimes  of  murder  and 
rape,  see  A.  W.  92.)  In  accordance  with  a  principle  of  comit 
between  the  civil  and  military  tribunals  in  cases  of  concurrent 
jurisdiction  the  jurisdiction  which  first  attaches  in  a  particular  ease 
is  entitled  to  proceed  to  its  termination.  This  is,  however,  not  an 
inflexible  rule  and  need  not  govern  the  action  of  the  military  authori- 
ties in  the  case  of  an  accused  person  demanded  by  the  civil  authorities 
to  answer  for  an  offense  which  is  primarily  one  against  the  civil 
community. 

When  any  person  subject  to  military  law,  except  (a)  one  who  is 
held  by  the  military  authorities  to  answer,  or  (b)  who  is  awaiting 
trial,  or  (c)  result  of  trial,  or  (d)  who  is  undergoing  sentence  for  a 
crime  or  offense  punishable  by  the  Articles  of  War,  is  accused  of  a 
crime  or  offense  committed  within  the  geographical  limits  of  the 
States  of  the  Union  and  the  District  of  Columbia,  and  punishable 
by  the  laws  of  the  land,  the  commanding  officer  is  required,  except 
in  time  of  war,  upon  application  duly  made,  to  use  his  utmost  en- 
deavor to  deliver  over  such  accused  person  to  the  civil  authorities, 
or  to  aid  the  officers  of  justice  in  apprehending  and  securing  him,  in 
order  that  he  may  be  brought  to  trial.  Any  commanding  officer  who 
upon  such  application  refuses  or  willfully  neglects,  except  in  time 
of  war,  to  deliver  over  such  accused  person  to  the  civil  authorities 
or  to  aid  the  officers  of  justice  in  apprehending  and  securing  hira 
shall  be  dismissed  from  the  service  or  suffer  such  other  punishment 
ourt-martial  may  direct. 

When,  under  the  provisions  of  this  article,  delivery   is  m 
the  civil  authorities  of  an  offender  ^undergoing  sentence  of  a  c< 
martial,  such   delivery,  if  followed   by   conviction,  shall   be   held   U 
interrupt   the  execution  of  the  sentence  of  the  court-martial,  and 
the   offender  shall   be   returned   to   military   custody,   after   hi 


20  MANUAL  FOR  COURTS-MARTIAL. 

•red  t<>  the  civil  authorities  for  his  offense,  for  the  completion 
of  the  said  court-martial  sentence.  (A.  W.  74.)  When  offenses 
against  the  peace  and  good  order  of  <  ivil  communities  are  committed 

•  •l'sons  subject  to  military  law,  the  proper  military  authorities 
will  be  prompt  in  the  preferring  of  charges  and  the  arraignment 
of  offenders,  having  due  regard  for  arrangements  existing  for  the 
purpose  of  securing  between  the  authorities  of  the  two  jurisdictions, 
civil  and  military,  mutual  aid  and  cooperation  in  the  administration 
of  justice.    In  such  cases,  if,  after  charges  are  preferred,  the  officer 

petent  to  order  trial  by  the  proper  court-martial  deems  it  inad- 
visable to  bring  the  case  to  trial,  he  will  hold  the  offender  and  for 
ward  the  charges,  with  his  views  thereon,  to  The  Adjutant  General 
of  the  Army. 

36.  Can  not  be  divested  by  act  of  accused. — A  court-martial  having 
once  duly  assumed  jurisdiction  of  a  ease,  can  not,  by  any  wrongful 
act  of  the  accused,  be  ousted  of  its  authority  or  discharged  from  its 
duty  to  proceed  fully  to  try  and  determine  according  to  law  and  its 
oath.  Thus  the  fact  that,  after  arraignment  and  during  the  trial,  the 
accused  has  escaped  from  military  custodj7,  furnishes  no  ground  for 
not  proceeding  to  a  finding,  and,  in  the  event  of  conviction,  to  a 
sentence,  in  the  case;  and  the  court  may  and  should  find  and  sentence 
as  in  any  other  case.  During  such  absence  it  is  proper  for  his  counsel 
to  continue  to  represent  him  in  all  respects  as  though  present. 

37.  Not  territorial. — Military  jurisdiction  is  not  territorial.  It  ex- 
tends as  to  persons  legally  subject  to  it  to  offenses  committed  by  them 
in  any  place  whatsoever,  whether  within  or  beyond  the  territorial 
jurisdiction  of  the  United  States. 

38.  When  terminated — Rule  stated. — The  jurisdiction  of  courts-mar- 
tial   over   officers,   cadets,   and    soldiers   ordinarily   ends   when   they 

me  separated    from  the  service.     The  following  are,  however, 
•  ''//(. s-  to  this  gem  re'  i  </L  : 

(a)    If  any  person,  being  guilty  of  any  of  the  offenses  of  fraud, 
embezzlement,  etc.,  against  the  United  States,  while  in  the  military 
3ervice  of  the  United  States,  receives  his  discharge  or  is 
fron  ce,  he  shall  continue  to  be  liable  lobe  arrested  and.  held 

for  trial  and  sentence  by  a  court-martial  in  the  same  manner  and  to 
Hi'-  same  extent  as  if  he  had  not  received  such  discharge  nor  been 
dismi  --d.     (A.  \V.  94.) 

{!>)  When  any  officer,  dismissed  by  order  of  the  President,  makes, 
in  writing,  an  application  for  trial,  setting  forth,  under  oath,  that 
he  has  been  wrongfully  dismissed,  the  President  shall,  as  soon  as  the 
-  of  the  service  may  permit,  convene  a  court-martial  to  try 
such  officer  on  the  charges  on  which  he  shall  have  been  dismissed, 
ami  if  a  court-martial  is  not  so  convened  within  six  months  from  the 
date  of  making  of  such  application  for  trial,  or  if  such  court,  being 


COURTS-MARTIAL JURISDICTION.  21 

convened,  does  not  award  dismissal  or  death  as  the  punishment  of 
such  officer,  the  order  of  dismissal  by  the  President  shall  be  void. 
(E.  S.  1230.) 

[Note. — In  time  of  peace  no  officer  shall  be  dismissed  excepl  in  pursuance  of 
the  sentence  of  a  court-martial  or  In  mitigation  thereof.  (A.  \v.  lis.)  An 
officer  discharged  from  bis  office  by  the  President  under  section  9  of  the  selec- 
tive-draft acl  is  nol  entitled  to  demand  a  trial  by  court-martial.  (Dig.  Ops. 
J.  A.  <;..  May.  1918,  Office  IV  E.)] 

(c)  All  persons  under  sentence  adjudged  by  courts-martial  remain 
subject  to  military  law,  while  under  such  sentence.     (A.  W.  2.) 

(d)  "Where  a  soldier  obtains  his  discharge  by  fraud,  the  discharge 
may  be  canceled  and  the  soldier  arrested  and  returned  to  military 
control.  He  may  also  be  required  to  serve  out  his  enlistment  and 
may  be  tried  for  his  fraud.     (Digest,  p.  457,  XVI,  A.  3.) 

(e)  An  honorable  discharge  releases  from  the  particular  contract 
and  term  of  enlistment  to  which  it  relates,  and  does  not  therefore 
relieve  the  soldier  from  the  consequences  of  a  desertion  committed 
during  a  prior  enlistment.  (Digest,  p.  462,  XXII,  A.)  A  dishonor- 
able discharge  does  not  relate  to  any  particular  contract  or  term  of 
enlistment;  it  is  a  discharge  from  the  military  service  as  a  punish- 
ment— a  complete  expulsion  from  the  Army — and  covers  all  unex- 
pired enlistments.  A  soldier  thus  dishonorably  discharged  can  not 
be  made  amenable  for  a  desertion  or  other  military  offense  committed 
under  a  prior  enlistment  except  as  provided  in  A.  W.  94.  Nor  would 
a  subsequent  enlistment  after  such  dishonorable  discharge  operate  to 
revive  the  amenability  of  the  soldier  for  such  offenses.  (Digest,  p. 
462,  XXII,  B.) 

[Note. — For  an  offense  committed  prior  to  the  expiration  of  his  term  of  en- 
listment, a  soldier  may  be  held  in  the  service  and  tried  after  the  expiration  of 
his  term.     So,  also,  a  soldier  may  be  tried  for  offenses  committed  while  making 
good  time  lost  through  desertion,  through  absence  without  leave,  through  dis- 
ult  of  his  own  misconduct,  etc.,  under  A.  W.  107.]     (C.  M. 

•    /■! 

Section  II. 
JURISDICTION  OF  GENERAL  COURTS-MARTIAL. 

39.  Persons  and  offenses — General  courts-martial  have  power  (A.  TV. 
12)  to  try — 

person  subject  to  military  law,  for 

(h)  Any  crime  or  offense  made  punishable  by  the  Articles  of  War. 

[Note. — No  officer  slinl!  be  brought  1<>  trial  before  a  general  court-martial 
appointed  by  the  Superintendent  of  the  Military  Academy.     <  \.  W.  12.)] 

In  addition  they  have  power  to  try- 
Any  person  othet  than  (</)  above,  who  by  the  law  of  war  is' 
subject  to  trial  by  military  tribunals,  for 

(d)  Any  crime  or  offense  in  violation  of  the  law  of  war. 

40.  Limits  of  punishment — Exception. — Punishment  upon  conviction 
is  discretionary  with  a  general  court-martial,  except — 

(a)  When  mandatory  under  the  law,  or 

(M  When  limited  by  order  of  the  President  under  A.  W.  45;  in 
addition, 


22  MANUAL  FOR  COURTS-MARTIAL. 

The  death   penalty   can   be   imposed   only   when   .-pecitieally 
authorized. 

[Nom — The  death  penalty  la  mandatory  In  the  rase  <>f  spies  (A.  W.  82)  ;  dis- 
missal is  mandatory  For  conduct  unbecoming  an  officer  and  gentleman   (A.  W. 
either  death  <>r  Imprisonment  (or  life  is  mandatory  Cor  murder  and  rape 
i  a.  w  .  92);  punlshmenl   is  mandatory  in  part  and  discretionary  in  part  for 
muster  (A.  W.  66),  false  returns  (A.  W.  57),  officer  drunk  on  duty  in  time 
r  i  a.  \v.  B5),  and  personal  Interest  in  the  sale  of  provisions  (A.  \v.  87). 
For  limits  ot'  punishment  fixed  by  the  President  under  a.  w. 
XIII,  post,  Punishments.] 

Section  III. 

JURISDICTION  OF  SPECIAL  COURTS-MARTIAL. 

41.  Persons  and  offenses. — Special  courts-martial  shall  have  power 
«'A.  W.  13)  to  try— 

(1)  Any  person  subject  to  military  law,  except — 

(a)  An  officer; 

(b)  Any  person  subject  to  military  law  belonging  to  a  class  or 
classes  excepted  by  the  President,  for 

(2)  Any  crime  or  offense  (not  capital)  made  punishable  by  the 

Articles  of  War. 

[Note. — Cadets  ami  soldiers  holding  a  certificate  of  eligibility  for  promotion 
re  excepted  from  tlie  jurisdiction  of  Special  Courts-martial.] 

The  following  are  capital  crimes  and  offenses  under  the  Articles  of 

War,  viz: 

(1)  At  all  times. —  (a)  Assaulting  or  disobeying  a  superior  officer 
(A.  W.  64)  ;  (b)  mutiny  or  sedition  (A.  W.  66)  :  (V)  failure  to  sup- 
press mutiny  or  sedition  (A.  W.  67)  :  (d)  murder,  rape  (A.  W.  92). 

(2)  War  offenses. —  (a)  Desertion  (A.  W.  58);  (&)  advising  or 
aiding  another  to  desert    (A.  W.   59);    (c)   misbehavior  before  the 

try    (A.   W.   7"> )  ;    (d)    subordinates   compelling  commander   to 
ender  (A.  W.  76) :  '  er  use  of  countersign  (A.  W.  77) : 

(/)  forcii  guard   (A.  W.  78)  ;   (g)   relieving,  corresponding 

.  or  aiding  the  enemy  (A.  W.  81);   (h)  spies  (A.  V. 
bavior  of  sentinel  (A.  W.  86).     {('.  M.  C.  J/.,  No8.  1  and  I) 

42.  Limits  of  punishment. — A  special  court-martial  shall  not  have 
power  to  adjudge — 

(</.)   Dishonorable  discharge,  nor 

(I)  Confinement  in  excess  of  six  months,  nor 

(c)  Forfeiture  of  more  than  six  months'  pay. 

I  Nun-. —  (a)  Reduction  t<»  the  ranks  in  the  case  of  noncommissioned  officers 
and  i /- 1  reduction  in  classification  in  the  cases  of  first-class  privates  are  within 
the  limits  of  ttie  punishing  powei  I  courts-martiaL     (Act  of  Mar.  2, 

at.,  722.)] 

Section  IV. 

JURISDICTION    OF   SUMMARY    COURTS-MARTIAL. 

43.  Persons  and  offenses. — Summary  courts-martial  shall  have  powe- 
(A.  W.  ID  to  try— 

(1)   Any  j>,  r*,,n  subject  to  military  law,  except — 
(a)  An  officer; 


COURTS-MARTIAL JURISDICTION.  23 

(b)  A  cadet; 

(c)  A  soldier  holding  the  privilege  of  a  certificate  of  eligibility  to 
promotion ; 

(d)  A  noncommissioned  officer  who  objects  thereto  (without  the 
authority  of  the  officer  competent  to  bring  him  to  trial  before  a  gen- 
eral court-martial)  ; 

(e)  Any  person  belonging  to  a  class  or  classes  excepted  from  the 
jurisdiction  of  summary  courts-martial  by  the  President. 

(2)  Any  crime  or  offense  (not  capital)  made  punishable  by  the 

Articles  of  War. 

[Note. — For  list  of  capital  crimes  under  the  Articles  of  War  see  Sec.  Ill, 
par.  41,  supra.] 

44.  Limits  of  punishment. — A  summary  court-martial  shall  not  have 
power  to  adjudge — 

(a)  Dishonorable  discharge, 

(5)   Confinement  in  excess  of  three  months,  nor 

(c)  Forfeiture  of  more  than  three  months'  pay. 

Exception. — When  the  summary  court  officer  is  also  the  command- 
ing officer,  no  sentence  of  such  summary  court-martial  adjudging 
confinement  at  hard  labor  or  forfeiture  of  pay,  or  both,  for  a  period 
in  excess  of  one  month  shall  be  earned  into  execution  until  the  same 
shall  have  been  approved  by  superior  authority.     (A.  W.  14.) 

[Note. —  (a)  Reduction  to  the  ranks  in  the  case  of  noncommissioned  officers 
and  {b)  reduction  in  classification  in  the  cases  of  first-class  privates  are  within 
the  limits  of  the  punishing  power  of  summary  courts-martial.  (Act  of  Mar.  2, 
1913,  37  Stat,  723.)] 

Section  V. 
JURISDICTION  OF  OTHER  MILITARY  TRIBUNALS. 

45.  When  concurrent  with  courts-martial. — The  provisions  of  the 
Articles  of  War  conferring  jurisdiction  upon  courts-martial  shall 
not  be  construed  as  depriving  military  commissions,  provost  courts, 
or  other  military  tribunals  of  concurrent  jurisdiction  in  respect  to 
offenders  or  offenses  that  by  the  law  of  war  may  be  lawfully  triable 
by  such  military  commissions,  provost  courts,  or  other  military 
tribunals.     (A.  W.  15.) 


CHAPTER  V. 
COURTS-MARTIAL— PROCEDURE  PRIOR  TO  TRIAL. 


Page. 

•Section  I :  Arrest  and  confinement 25 

4C>.  Arrest  or  confinement  of  accused  persons 25 

47.  Who  may  order  arrests 26 

(a)  Commmanding  officers 26 

(6)  Judge  advocates 26 

(c)  Courts-martial 26 

48.  Arrest,  how  executed 26 

49.  Status  of  officer  in  arrest 26 

50.  Arrest  of  officer  without  preferring  charges 26 

51.  Arrest  of  medical  officer 27 

52.  Arrest  and  confinement  of  soldiers 27 

53.  Status  of  noncommissioned  officers  in  arrest 27 

54.  Abuse  of  authority  to  arrest 27 

55.  Refusal  to  receive  and  keep  prisoners 28 

56.  Placing  prisoners  in  irons 28 

57.  Releasing  prisoners  without  proper  authority 28 

Section  II :  Arrest  of  deserters  by  civil  authorities 28 

58.  Authority  for  apprehension 28 

59.  Authority  of  citizens  other  than  peace  officers  to  arrest  deserters 28 

60.  Minority  of  deserter 29 


Section  I. 
ARREST  AND  CONFINEMENT. 

46.  Arrest  or  confinement  of  accused  persons. —  (a)  An  officer  charged 
with  crime  or  with  a  serious  offense  under  the  articles  of  war  shall  be 
placed  in  arrest  by  the  commanding  officer,  and  in  exceptional  cases 
an  officer  so  charged  may  be  placed  in  confinement  by  the  same 
authority. 

(b)  A  soldier  charged  with  crime  or  with  a  serious  offense  under 
the  articles  of  war  shall  be  placed  in  confinement,  and  when  charged 
with  a  minor  offense  he  may  be  placed  in  arrest. 

(c)  Any  other  person  subject  to  military  law  charged  with  crime 
or  with  a  serious  offense  under  the  articles  of  war  shall  be  placed  in 
confinement  or  in  arrest,  as  circumstances  may  require;  and  when 
charged  with  a  minor  offense  such  person  may  be  placed  in  arrest. 
Any  person  placed  in  arrest  under  the  provisions  of  this  article 

25 


26  LNUAL  FOR  COURTS-MAKTIAI.. 

icted  to  his  barracks,  quarters,  or 

tent,  unit  >s  such  Limits  shall  be  enlarged  by  proper  authority.    Any 

ipes  from  confinement  before 

he  is  set  i  by  proper  authority  shall  be  dismissed  from  the 

:  suffer  such  other  punishment  as  a  court-martial  may  direct  • 

and  any  i  □  subject  io  military  law  who  escapes  from  con- 

,.  nt  or  v.  ho  breaks  his  arrest  before  he  is  set  at  liberty  by  proper 

authority  shall  be  punished  as  a  court-martial  may  direct.     (A.W.69.) 

[Note. — A  fall  e  a  person  subject  to  military  law  in  arrest  or  con- 

finement <>r  the  disregard  of  any  custom  or  Cormalil  sd  therewith  does 

ffecl  the  jurisdiction  of  a  court  1 

47.  Who  may  order  arrests. — (a)  Only  commanding  officers  have 

power  to  place  officers  in  arrest,  except  as  provided  in  A.  W.  68. 

[Note. — The  "commanding  officer"  tluis  authorized  is  the  commander  of  the 
regiment,  separate  company,  detachment,  post,  department,  etc.,  in  which  the 
officer  is  serving.    Digest,  p.  481,  I  D.  1.] 

(b)  A  jui.\  ite  of  a  court-martial  has  no  authority  to  place 
in  arrest  an  officer  or  soldier  about  to  be  tried  by  the  court,  or  to  com- 

ance  of  the  accused  before  the  court  by  requiring  a  non- 
idssioned  officer  to  bring  him,  or  otherwise.     These  are  duties 
which  devolve,  upon  the  convening  authority  or  upon  the  post  com- 
mander or  other  proper  officer  in  whose  custody  or  command  the  ac- 
cused is  at  the  time.    (Digest,  p.  498,  IV,  B,  5.) 

(c)  A  court-martial  has  no  control  over  the  nature  of  the  arrest  or 
other  status  of  restraint  of  a  prisoner  except  as  regards  his  personal 
freedom  in  its  presence.  It  cannot  place  an  accused  person  in  arrest 
or  confinement  nor  can  the  court,  even  with  a  view  to  facilitate  his  de- 

.  interfere  to  cause  a  close  arrest  to  be  enlarged.  The  officer  in 
command  is  alone  responsible  for  the  prisoners  in  his  charge.  (Davis, 
p.  62.) 

48.  Arrest,  how  executed. — An  officer  is  placed  in  arrest  by  his  com- 
manding officer  in  person  or  through  another  officer,  by  a  verbal  or 
written  order  or  communication,  advising  him  that  he  is  placed  in 

:.  or  will  consider  himself  in  arrest,  or  words  to  that  effect. 

49.  Status  of  officer  in  arrest. — An  officer  in  arrest  can  not  exercise 
tnand  of  any  kind.    He  will  not  wear  a  sword  nor  visit  officially 

his  commanding  or  other  superior  officer,  unless  directed  to  do  so. 
applications   and   requests   of   every   nature   will   be  made   in 
writing.     (A.  R.  026.) 

50.  Arrest  of  officer  without  preferring  charges. — Officers  will  m 

led  in  arrest  for  light  offenses.  For  these  the  censure  of  the 
nanding  <  •  generally  answer  the  purpose  of  discipline. 

\\  henever  a  commanding  officer  places  an  officer  in  arrest  without 
:  ring  charges,  he  will  make  a  written  report  of  his  action  to 

the  brigade  or  <  loasl  Artillery  district  commander,  stating  the  cause, 
brigade  or  Coast  Artillery  district  commander,  if  he  thinks  the 


COURTS-MARTIAL PROCEDURE  PEIOR  TO  TRIAL..  27 

occasion  requires,  -will  call  on  the  officer  arrested  for  any  explanation 
he  may  desire  to  make,  and  take  such  other  action  within  his  au- 
thority as  he  may  think  necessary,  forwarding  the  papers,  with  hig 
recommendation,  to  the  department  commander,  who  will,  in  case  a 
trial  is  not  deemed  advisable,  forward  the  papers  to  The  Adjutant 
General  of  the  Army  for  file  with  the  officer's  record,  or  for  further 
action.  In  the  case  of  officers  belonging  to  organizations  not  attached 
or  belonging  to  a  brigade  or  Coast  Artillery  district,  the  report  will 
be  sent  directly  to  the  officer  exercising  general  court-martial  juris- 
diction.    (A.  E.  924.) 

51.  Arrest  of  medical  officer. — In  ordinary  cases  where  inconvenience 
to  the  service  would  result  from  it,  a  medical  officer  will  not  be 
placed  in  arrest  until  the  court-martial  for  his  trial  convenes. 
(A.  E.  925.) 

52.  Arrest  and  confinement  of  soldiers. — Except  as  provided  in  A.  W. 
or  when  restraint  is  necessary,  no  soldier  will  be  confined  without 

order  of  an  officer,  who  shall  previously  inquire  into  his  offense 
t  A.  11.  930)  ;  it  is  proper,  however,  for  a  company  commander  to 

gate  to  noncommissioned  officers  of  his  company  the  power  to 
place  enlisted  men  in  arrest  as  a  means  of  restraint  at  the  instant 
when  restraint  is  necessary,  but  such  action  must  be  reported  to  the 
company  commander  at  once.  (Digest,  p.  481, 1,  E,  1.) 

53.  Status  of  noncommissioned  officer  in  arrest. — Noncommissioned 
officers  will  not  be  confined  in  company  with  privates  if  it  can  be 
avoided.  When  placed  in  arrest,  they  will  not  be  required  to  perform 
any  duty  in  which  they  may  be  called  upon  to  exercise  authority  or 
control  over  others,  and  when  placed  in  confinement,  they  will  not 
be  sent  out  to  work. 

54.  Abuse  of  authority  to  arrest. — The  fact  that  cases  of  officers  put 
in  arrest  "at  remote  military  posts  or  stations"  are  excepted  from 
the  application  of  A.  W.  70  does  not  authorize  an  abuse  of  the  power 
of  arrest  in  these  cases.  And  where,  in  such  a  case,  an  arrest,  con- 
sidering the  facilities  of  communication  with  the  department  head- 
quarters and  other  circumstances,  is  in  fact  unreasonably  protracted 
without  trial  the  officer  is  entitled  to  be  released  from  arrest  upon 
a  proper  application  submitted  for  the  purpose'.  (Digest,  p.  152, 
LXXI,  C.)  Though  an  officer,  in  whose  case  the  provisions  of 
A.  W.  TO  in  regard  to  service  of  charges  and  trial  have  not  been 
complied  with,  is  entitled  to  be  released  from  arrest,  he  is  not  author- 
ized to  release  himself  therefrom.  If  he  be  not  released  in  accordance 
with  the  article  he  should  apply  for  his  discharge  from  arrest. 
through  the  proper  channels,  to  the  authority  by  whoso  order  the 

!  was  imposed,  or  other  proper  superior.  (Digest,  p.  153y 
LXXI,  D.)  When  an  offieer  is  placed  in  arrest  in  the  operation  of 
\.  W.  69  and  subsequently  tried  he  is  not  entitled  to  be  released  from 


28  MANUAL  FOR  COURTS-MARTIAL. 

arrest,  Eta  a  right,  until  the  proper  reviewing  authority  has  acted  on 
the  record  of  hia  case.    (  Digest,  p.  L52,  LXV,  ('.) 

55.  Refusal  to  receive  and  keep  prisoners. — No  provost  marshal  or 
commander  of  ■  guard  shall  refuse  to  receive  or  keep  any  prisoner 
committed  to  his  charge  by  an  officer  belonging  to  the  forces  of  the 
United  Slates,  provided  the  officer  committing  shall,  at  the  time, 
deliver  an  account  in  writing,  signed  by  himself,  of  the  crime  or 

I  against  the  prisoner.    Any  officer  or  soldier  so  refus- 
ing shall  be  punished  as  a  court-martial  may  direct.     (A.  YV.  71.) 

[Note. — A.  W.  72  requires  every  commander  of  a  guard  to  submil  a  report 
in  writing  to  his  commanding  officer  within  twenty-four  hours  after  (he  confine- 
ment ef  a  prisoner  (or  as  soon  as  he  la  relieved  from  his  guard)  showing  (<m 
the  name  of  such  prisoner,  (b)  the  offense  charged  against  him,  and  (c)  the 
of  the  officer  committing  him.  such  report  is  ordinarily  contained  in  the 
"Guard  report"  and  presented  to  the  commanding  officer  by  the  old  officer  of 
the  day  at  guard  mounting.  For  duty  of  commanding  officers  to  surrender 
rs  to  civil  authorities,  see  par.  35.] 

56.  Placing  prisoners  in  irons- — Prisoners  will  not  be  placed  in  irons 
except  in  the  extraordinary  case  of  a  prisoner  who,  in  the  judgment 
of  the.  commanding  officer,  is  a  desperate  or  dangerous  character,  in 
which  case  report  of  action  and  the  circumstances  will  be  immediately 
made  to  the  department  or  tactical  division  commander.     When  a 

mer  is  removed  from  irons  a  report  of  that  action  will  be  made  to 
department  or  tactical  division  commander.     A  prisoner  may  be 
shackled  or  handcuffed  while  bemg  transported  from  one  post  to  an- 
other, or  from  a  post  to  a  penitentiary,  when,  in  the  judgment  of  the 
officer  in  charge,  the  escape  of  the  prisoner  can  not  otherwise  be  pre- 
!.     (A.  R.  935.) 

57.  Releasing  prisoner  without  proper  authority. — Any  person  subject 
to  military  law,  who,  without  proper  authority,  releases  any  prisoner 
duly  committed  to  his  charge,  or  who,  through  neglect  or  design, 

srs  any  prisoner  so  committed  to  escape,  shall  be  punished  as  a 
court-martial  may  direct.     (A.  W.  73.) 

Sectiox  II. 
ARREST  OF  DESERTERS  BY  CIVIL  AUTHORITIES. 

58.  Authority  for  apprehension. — It  shall  be  lawful  for  any  civil 
officer  having  authority  under  the  laws  of  the  United  States,  or  of 
any  State,  Territory,  District,  or  possession  of  the  United  States,  to 

t  offendi  rs.  summarily  to  arrest  a  deserter  from  the  military 
ice  of  the  United  States  and  deliver  him  into  the  custody  of 
the  military  authorities  of  the  United  States.     (A.  W.  106.) 

59.  Authority  of  citizens  other  than  peace  officers  to  arrest  deserters. — 
The  statute  conferring  authority  upon  civil  officers  to  apprehend 
and  deliver  dei  erters  <  A.  W.  100)  should  not  be  construed  as  taking 
away  the  authority  for  their  apprehension  by  a  citizen  under  an 


COURTS-MARTIAL PROCEDURE   PRIOR   TO  TRIAL.  29 

order  or  direction  of  a  military  officer,  but  the  legislation  should  be 
treated  as  providing  an  additional  means  of  securing  the  arrest  of 
deserters  by  conferring  authority  upon  civil  officers  to  apprehend 
them  without  military  orders — leaving  the  former  method  still  legal. 
The  offer  of  reward  for  the  apprehension  and  delivery  of  a  deserter, 
coupled  with  the  act  of  Congress  which  provides  for  the  payment 
of  such  a  reward,  is  considered  sufficient  authority  for  the  arrest  of 
the  deserter  by  a  citizen.     (C-17327-A,  July  20,  1909.) 

60.  Minority  of  deserter. — The  right  of  the  United  States  to  arrest 
and  bring  to  trial  a  deserter  is  paramount  to  any  right  of  control  over 
him  by  a  parent  on  the  ground  of  his  minority.  (See  Digest,  p.  401, 
III,  G;  In  re  Cosenow,  37  Fed.  Eep.,  668;  In  re  Kaufman,  41  Fed. 
Sep.,  876 ;  and  compare  In  re  Grimley,  137  U.  S.,  147,  and  in  In  re 
Morrissey,  137  U.  S.,  157.) 


CHAPTER  VI. 
COURTS-MARTIAL— PROCEDURE  PRIOR  TO  TRIAL. 

[Continued.] 


Paga. 

Section  I :  Preparation  of  charges 31 

61.  Definitions 31 

62.  Who  may  initiate  charges 32 

63.  Who  may  prefer  charges 32 

64.  Signing  charges 32 

65.  Accumulation  of  charges 32 

66.  Duplication  of  charges 33 

67.  Consolidation  of  charges ■. 33 

68.  Refusal  to  submit  to  medical  treatment 33 

69.  Joint  charges 34 

70.  (  barges  not  to  be  preferred  upon  uncorroborated  confession 34 

71.  Charges  for  private  indebtedness 35 

72.  Numbering  charges  and  specifications 35 

73.  Additional  charges 36 

74.  Rules  to  be  observed  in  pleading 36 

(a)  Statement  of  charge 36 

(b)  Statement  of  specification 36 

(c)  Alternative  pleading 36 

(d)  Evidence  not  to  be  pleaded 37 

(c)  Specific  articles,  when  used 37 

(/)  Forms  for  charges 37 

(g)  Time  and  place 37 

(h)  Christian  name 38 

(i)  Charging  under  alias 38 

(j)  General  prisoners 38 

(h)  Change  of  rank 39 

(I)  Written  papers  and  oral  statements 39 

(m)  Scandalous  and  disgraceful  offenses 39 

(»)  Desertion  followed  by  fraudulent  enlistment 39 

(o)  Larceny  and  sale  of  public  property 39 

(p)  Wording  of  statute  to  be  followed 40 

Section  II:  Action  upon  charges 40 

75.  Submission  of  charges 40 

76.  Investigation  of  charges 40 

77.  Prompt  action  required 41 

78.  Determination  of  proper  trial  court 41 

79.  Disposition  of  copies  of  charges 42 

80.  Service  of  charges  upon  accused 42 


Section  I. 
PREPARATION  OF  CHARGES. 

61.  Definitions- — A  charge  corresponds  to  a   civil    indictment.     It 
consists  of  two  parts — the  technical  "charge"  which  should  designate 

31 


32  MANUAL   FOR   COURTS-MARTIAL. 

the  alleged  crime  or  offense  as  a  riolation  of  a  particular  article  of 

war  or  other  statute,  and  the  "specification?*  which  sets  forth  the 

constituting  the  same.    The  requisite  of  a  charge  is  that  it 

shall  be  laid  under  the  proper  article  of  war  or  other  statute;  of  a 

■  „.  that  it  shall  set  forth  in  simple  and  concise  language 
sufficient  to  constitute  the  particular  offense  and  in  such  man- 
ner as  to  enable  a  persou  of  common  understanding  to  know  what 
is  intended.  The  general  term  "charges,"  in  the  sense  that  the 
word  "charge"  is  used  in  the  first  sentence  of  this  paragraph, 
includes  any  number  of  technical  charges  and  their  specifications. 
[  Note. — For  forms  for  changes  see  Appendix  ■'<.] 

62.  Who  may  initiate  charges.— Military  charges,  though  commonly 
originating  with  military  persons,  may  be  initiated  by  civilians. 
Indeed,  it  is  but  performing  a  public  duty  for  a  civilian  who  becomes 
cognizant  of  a  serious  offense  committed  by  an  officer  or  a  soldier  to 
bring  it  to  the  attention  of  the  proper  commander.  A  charge  may 
likewise  originate  with  an  enlisted  man.  But  by  the  usage  of  the 
sen  ice  all  military  charges  should  be  formally  preferred  by— that  is, 
authenticated  by  the  signature  of — a  commissioned  officer.  Charges 
proceeding  from  a  person  outside  the  Army  and  based  upon  testi- 
mony not  in  the  possession  or  knowledge  of  the  military  authorities, 
should,  in  general,  be  required  to  be  sustained  by  affidavits  or  other 
reliable  evidence,  as  a  condition  to  their  being  adopted.  (Digest,  p. 
482,  TLB.) 

63.  Who  may  prefer  charges. — Any  officer  may  prefer  charges.  An 
officer  is  not  disqualified  from  preferring  charges  by  the  fact  that 
he  is  himself  under  charges  or  in  arrest.       (Digest,  p.  483,  II,  C.) 

64.  Signing-  charges. — The  officer  preferring  charges  will  sign  his 
name  following  the  last  specification,  adding  his  rank  and  organiza- 
tion in  the  Army. 

The  signing  of  charges,  like  orders,  with  the  name  of  an  officer, 
adding  "1  •  of"  his  commander,  is  unusual   and  not  to  be 

recommended.  (Digest,  p.  487,  II,  D,  12,  a.)  The  signature  of 
the  officer  preferring  charges  forms  no  part  of  the  charges  them- 
selves,  but  such  signature  will  nevcrtJicless  be  copied  into  the  record 
of  trial  by  a  general  or  special  court-martial,  in  order  that  it  may 
affirmatively  appear  whether  the  officer  preferring  the  charges  (who 
is  prima  facu  the  accuser)  sat  as  a  member  of  the  court.  (See  A.  TV. 
8,9.) 

65.  Accumulation  of  charges. — It  may  sometimes  be  expedient,  where 
the  offense  are  slight  in  themselves  and  it  is  deemed  desirable  to 
exhibit  a  continued  course  of  conduct,  to  wait,  before  preferring 
charges,  till  a  series  of  similar  acts  have  been  committed,  provided 


COURTS-MARTIAL — PROCEDURE  PRIOR   TO   TRIAL.  33 

the  period  be  not  unreasonably  prolonged;  but,  in  general,  charges 
should  be  preferred  and  brought  to  trial  immediately  or  presently 
upon  the  commission  of  the  offenses.  Anything  like  an  accumula- 
tion or  saving  up  of  charges,  through  a  hostile  animus  on  the  part 
of  the  accuser,  is  discountenanced  by  the  sentiment  of  the  service. 
(Digest,  p.  490,  II,  F,  2.) 

66.  Duplication  of  charges. — The  duplication  of  charges  for  the  same 
act  or  omission  will  be  avoided  except  when,  by  reason  of  lack  of 
definite  information  as  to  available  evidence,  it  may  be  necessary  to 
charge  the  same  act  or  omission  as  constituting  two  or  more  distinct 
offenses.  When  the  same  act  or  omission  in  its  different  aspects  is 
charged  as  constituting  two  or  more  offenses,  the  court,  even  though 
it  arrives  at  a  finding  of  guilty  in  respect  of  two  or  more  specifica- 
tions, should  impose  punishment  only  with  reference  to  the  act  or 
omission  in  its  most  important  aspect,  and  if  this  rule  be  not  ob- 
served by  the  court  the  reviewing  authority  should  take  the  neces- 
saiy  action.  Thus  a  soldier  should  not  be  punished  for  disorderly 
conduct  and  for  assault,  when  the  disorderly  conduct  consisted  in 
making  the  assault.  And  so,  a  person  subject  to  military  law  should 
not  be  charged  under  A.  W.  61  for  failure  to  report  for  a  routine 
duty  at  a  time  included  in  a  period  for  which  he  is  charged  with 
absence  without  leave  under  the  same  article;  otherwise,  when  the 
duty  is  not  a  routine  duty.  Routine  duties  are  those  that  are  regu- 
larly scheduled,  such  as  reveille,  retreat,  stables,  fatigue,  schools, 
drills,  and  parades,  but  do  not  include  practice  marches  or  other 
previously  specially  appointed  and  important  exercises,  of  which 
the  accused  is  chargeable  with  notice. 

67.  Consolidation  of  charges. — Ordinarily  all  the  charges  against  the 
accused  should  be  consolidated  into  one  set  of  charges,  and  one  trial 
had  upon  the  consolidated  set  instead  of  having  two  or  more  trials, 
one  upon  each  set.  To  avoid  taking  up  unnecessarily  the  time  of  a 
court  with  minor  offenses,  where  charges  are  preferred  for  serious 
offenses,  there  should  not  be  joined  with  them  charges  for  minor 
derelictions,  unless  the  latter  serve  to  explain  the  circumstances  sur- 

iding  the  serious  charges.  For  instance  charges  for  desertion 
should  not  ordinarily  be  joined  with  charges  for  losing  through  neg- 
lect Government  property  of  small  value;  nor  should  charges  for 
willful  disobedience  of  the  orders  of  a  commissioned  officer  ordinarily 
be  joined  with  charges  for  an  absence  from  a  routine  duty. 

68.  Refusal  to  submit  to  medical  treatment. — The  provisions  of 
tion  II,  G.  O.  43.  W.  I)..  1906   (Compilation  of  Orders,  par.  .v.). 
which  formerly  regulated  the  procedure  in  this  matter,  have  been 
suspended  during  the  present  emergency,  and  the  following  suk-ii- 
tuted  therefor: 

53915°— 18 4 


34  MAXIM,    FOR    OOUBTS-MABTTAL. 

In  time  of  war  ii"  a  Boldier  i  •  submit  to  dental  or  surgical 

operations  or  dental  or  medical  treatment  he  will  be  examined  by  a 
medical  officers  convened  by  a  department  or  division 
commander  or  n  commander  of  a  base  or  a  general  hospital  or  a  corn- 
officer  of  any  po6l   where  there  are  four  or  more  offi 
lical  Department  on  duty,    [f,  in  the  opinion  of  the  board, 
the  operation  or  medical  or  dental  treatment  advised  i  y  to 

enable  the  soldier  to  perform  properly  his  military  duties,  and  he 
';.  his  refusal  after  being  notified  of  the  findings  of  the 
board,  he   may   be  tried   by  court-martial   under  the  ninety-sixth 
-  ..  HI,  G.  O.  29,  W.  D.,  L918.) 

[Note.     See  Dig.  Ops.  J.  A.  <:..  February,  1918,  p.  10;  April.  L918,  p.  29;  May. 
'/.  C.  M.  No.  .',.) 

69.  Joint  charges. — Where  two  or  more  persons  jointly  and  in  pur- 
suance of  a  common  intent  commit  a  crime  or  oil. use  which  can  be 
mitted  by  a  combination  of  persons  acting  in  concert,  they  may 
eparately  charged  and  tried  for  such  crime  or  offense  or  may  be 
jointly  charged  and  jointly  tried.    The  actual  presence  of  all  of  the 
accused  persons  at  the  actual  commission  of  the  offense  is  not  neces- 
sary, for  all  who  take  part  in  the  enterprise  are  equally  guilty, 
though  they  may  be  absent  from  the  place  of  actual  commission  of 
the  offense  with  which  they  are  charged.    The  fact  that  justice  may 
ire  that  different  degrees  of  punishment  be  awarded  to  the  dif- 
ferent parties  constitutes  no  objection  to  such  a  joint  prosecution. 
The  mere  fact  of  their  committing  the  same  offense  together  and  at 
the  same  time,  although  material  as  going  to  show  concert,  does  not 
ablish  it.    Thus  the  fact  that  several  soldiers  have  ab- 
sented  themselves  together  without  leave  will  not,  in  the  absence  of 
evidence  indicating  a  concert  of  action,  justify  their  being  arraigned 
together  on  a  joint  charge,  for  they  may  merely  have  been  availing 
themselves  of  the  same  convenient  opportunity  of  leaving.     Nor  is 
■rtion,  unless  in  execution  of  a  conspiracy,  chargeable  as  a  joint 
(Digest,  p.  484,  II,  D,  7.)     In  joint  charges  the  form  of 
the  charge  does  not  differ  from  that  in  other  charges.    The  form  of 
'nation  will  read  as  follows: 

In   I  te  ,  Company  .  Infantry;   Private  , 

iany  ,  -■ Infantry;  and  Private ,  Company , 

Infantry,  acting  jointly,  and  in  pursuance  of  a  common  intent,  did  [here  allege 
•  in  the  language  prescribed  where  the  offense  Is  committed  by  only 
one  person  1. 
The  right  of  challenge  may.  of  course,  he  exercised  by  each  of  the 

*  .  M.  <  .  M.,No.  /.) 

70.  Charges   not   to   be   preferred   upon   uncorroborated   confession. — 

Charges  Bhould  not  be  preferred  for  an  offense  unless  there  is  some 

evid(  than  the  confession  of  the  accused  that  the  offense 

has  been  committed.    This  applies  particularly  in  cases  of  fraudulent 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO   TRIAL.  35 

enlistment.  The  mere  confession  by  the  accused  that  he  had  prior 
service,  or  was  under  a  certain  disability  at  the  time  he  enlisted, 
and  concealed  that  fact  should  not  be  made  the  basis  for  charges 
unless  there  is  something  confirming  the  confession.  Charges  should 
not  be  preferred  in  such  cases  until  corroborating  evidence  that  the 
offense  was  committed  has  been  secured,  or  that,  the  existence  of  such. 
evidence  being  ascertained,  the  necessary  steps  to  obtain  it  have  been 
taken.     (See  par.  225.) 

71.  Charges  for  private  indebtedness. — The  military  authorities  will 
not  attempt  to  discipline  officers  and  soldiers  for  failure  to  pay  dis- 
puted private  indebtedness  or  claims — that  is,  indebtedness  or  a 
claim  where,  in  the  opinion  of  the  military  authorities,  there  is  a 
genuine  dispute  as  to  the  facts  or  law — nor  will  the  military  authori- 
ties  attempt  to  decide  such  disputed  indebtedness  or  claims.  If  the 
indebtedness  is  disputed  the  creditor  should  resort  to  the  civil  courts 
to  establish  the  liability.  If,  in  the  opinion  of  the  military  authori- 
ties, the  facts  and  law  are  undisputed  and  there  appears  to  the  mili- 
tary authorities  to  be  a  private  indebtedness,  and  the  officer  or  soldier 
does  not  claim  to  have  a  legal  or  equitable  set-off  or  counterclaim  to 
urge  against  it,  an  officer  may  be  brought  to  trial  if  his  failure  is  con- 
sidered to  be  a  violation  of  A.  W.  95  or  A.  W.  96,  and  a  soldier  may 
be  tried  if  his  failure  is  considered  to  be  a  violation  of  A.  W.  96,  but 
no  action  will  be  taken  by  the  military  authorities  to  enforce  pay- 
ment. If  an  officer  or  soldier  by  his  conduct  in  incurring  the  in- 
debtedness or  by  his  attitude  toward  it  or  his  creditor  thereafter 
reflect  discredit  upon  the  service  to  which  he  belongs,  he  should  be 
brought  to  trial  for  his  misconduct.  If  the  facts  and  law,  in  the 
opinion  of  the  military  authorities,  are  undisputed  and  there  appears 
to  the  military  authorities  to  be  no  indebtedness,  the  department  will 
take  no  further  action.  Where  a  soldier  was  largely  indebted  and 
failed  to  pay  his  indebtedness  and  the  commanding  officer  denied  the 
soldier  all  pass  privileges  until  the  indebtedness  was  paid,  it  was 
held  that  such  action  on  the  part  of  the  commanding  officer  consti- 
tuted an  attempt  to  enforce  payment  of  the  indebtedness  and  was 
contrary  to  the  policy  of  the  War  Department  and  such  action  should 
be  revoked.      (  Digest,  p.  878,  IV.) 

72.  Numbering  charges  and  specifications. — Where  there  are  several 
specifications  under  one  article,  the  usual  procedure  is  to  place  them 
all  under  one  charge,  rather  than  to  make  several  charges  with  one 
specification  under  each.  Where  there  are  several  specifications  under 
one  charge  they  will  be  consecutively  numbered,  and  where  there  are 
several  charges,  the  charges  will  be  consecutively  numbered. 


J',!'.  MANUAL  FOR  COURTS-MARTIAL. 

73.  Additional  charges.— New  and  separate  charges  which  are  pre- 
ferred  after  others  have  been  preferred  are  known  in  military  law 
as  "additional  charges."  Such  charges  may  relate  to  past  transac- 
tions which  were  Qot  known  by  or  brought  to  the  attention  of  the 
officer  framing  or  ordering  the  original  charges  at  the  time  they 
were  preferred;  or  they  may.  as  is  more  frequent,  arise  from  acts 
of  the  accused  subsequent  to  his  arrest  or  confinement  on  the  original 
charges.  Thus,  if  after  charges  have  been  preferred  he  commits  a 
"breaoh  of  arrest,"  an  additional  charge  will  properly  be  preferred 
in  the  case,  and  should  be  designated  as  an  "additional"  charge. 
Charges  of  this  character  do  not  require  a  separate  trial,  but  may 
and  preferably  should  be  tried  by  the  same  court  that  tries  the 
original  charges,  and  at  the  same  time  subject  to  the  limitation  re- 
garding service  of  charges  contained  in  A.  W.  70.  If  practicable  to 
consolidate  the  two  sets  of  charges  this  should  be  done,  otherwise 
the  second  set  will  be  denominated  "  additional  "  charges.  After  the 
court  has  been  duly  sworn  to  try  and  determine  "the  matter  now 

•  ii  "  additional  charges  which  the  accused  has  had  no  notice  to 
d  and  regarding  which  the  right  to  challenge  has  not  been  ac- 
corded him,  can  not  be  introduced  or  the  accused  required  to  plead 
thereto.    Such  charges  mnst  await  a  separate  trial.     (See  Winthrop, 
pp.  225,  226.)     (C.  M.  C.  M.,  No.  1.) 

74.  Rules  to  be  observed  in  pleading.— (a)  Statement  of  charge. — 
The  charge  should  be  limited  to  a  statement  of  the  article  violated, 
as  "  Violation  of  the  58th  article  of  war,"  or  "  Violation  of  the  85th 
article  of  war."  Common  law  and  statutory  crimes,  not  specified  in 
the  Articles  of  War,  over  which  courts-martial  have  jurisdiction 
should,  \i  not  capital,  be  charged  under  A.  W.  9G. 

(b)  /Statement  of  specification. — The  specification  need  not  possess 
the  technical  nicety  of  an  indictment.  In  general  a  bald  statement  of 
the  facts  in  simple  and  concise  language,  and  in  such  a  manner  as  to 
enable  a  person  of  common  understanding  to  know  what  is  intended 
is  sufficient,  provided  the  offense  itself  be  distinctly  and  accurately 
described.  More  specifically,  (1)  the  name,  rank,  title,  and  organiza- 
tion of  the  accused  person,  if  he  belongs  to  the  Army  of  the  United 
States,  should  be  stated,  or  if  he  is  a  civilian  he  should  be  so  de- 
scribed that  it  appeals  he  is  a  person  subject  to  military  law,  or  by 
statute  or  the  law  of  war,  is  subject  to  trial  by  military  tribunals; 
(2)  the  facts  that  constitute  the  offense  charged  will  he  set  out  briefly 
but  clearly,  together  with  the  place  and  time  of  commission.  Care 
should  he  taken  that  all  the  elements  of  the  offense  as  denounced  in 
the  article  of  war  or  other  statute  are  set  forth.  The  specification 
he  appropriate  to  the  charge.  (See  Winthrop,  p.  180,  and 
authorities  there  cited.) 


COUBTS-MABTIAL PROCEDURE   PRIOR   TO    TRIAL.  37 

(<?)  Alternative  pleading. — A  specification  should  not  allege  two 
offenses  in  the  alternative.  For  example,  an  offense  under  A.  W.  84 
can  not  be  charged  by  the  words,  "did  sell  or  through  neglect  lose." 
If,  as  the  result  of  an  investigation,  there  is  doubt  whether  the  prop- 
erty has  been  sold  or  lost,  both  offenses  may  be  charged  tinder  sepa- 
rate specifications.  Care  will  be  taken  in  every  case  where  an  article 
of  Avar  includes  two  or  more  offenses  to  see  that  each  specification 
alleges  but  a  single  offense.     (See  Digest,  p.  487,  II,  D,  11,  d.) 

(d)  Evidence  not  to  he  pleaded. — It  is  not  good  pleading  in  al- 
leging an  offense  to  state  the  circumstances  or  evidence  proving  or 
tending  to  prove  it,  such  as  the  acts,  occurrences,  and  matters  of  de- 
scription, which  should  properly  form  part  of  the  testimony  of 
witnesses;  but  there  is  no  objection  to  stating  very  briefly  in  the 
specification  the  immediate  result  or  effect  of  the  act  charged  as  a 
circumstance  of  description  illustrating  the  character  and  extent  of 
the  offense  committed.  For  instance,  in  charging  a  striking  or  doing 
of  violence  to  a  superior  officer  under  A.  W.  64,  it  is  allowable,  in  a 
case  where  the  assault  was  fatal,  to  add  in  the  specification,  "  thereby 
catising  his  death,"  as  indicating  the  measure  of  violence  employed. 
(Digest,  p.  488,  II,  D,  14,  a.) 

(e)  Specific  articles,  when  used.— When  a  crime  or  offense  is  spe- 
cifically provided  for  in  an  article  of  war.  the  charge  will  be  laid 
under  that  article  and  not  under  the  general  article,  i.  e.,  under  A.  W. 
9G.  This  rule  is  particularly  to  be  observed  when  the  crime  or  offense 
falls  under  an  article  which  prescribes  a  fixed  punishment.  (See, 
however,  A.  W.  37.) 

[Note.— In  charging  offenses  against  cadets  for  violation  of  regulations  of  the 
Milium-  Academy,  the  offense,  if  covered  by  a  specific  article  applicable  to 
s,  will  be  laid  under  that  article  (G.  O.  64,  War  Dept.,  1906),  otherwise  it 
will  be  bud  under  the  general  article.] 

(/)  Forms  fo:-  charges. — The  forms  for  charges  and  specifications 
set  forth  in  Appendix  4  cover  most  of  the  offenses  that  are  tried  by 
military  courts  and  covered  in  the  maximum-punishment  order. 
These  forms  may  be  followed,  in  the  cases  to  which  they  apply,  but 
they  are  not  mandatory. 

{(/)  Time  and  place. — The  allegations  of  the  time  and  place  of  the 
Lon  of  an  offense  should  be  stated  as  accurately  as  possible, 
but  where  the  act  or  acts  charged  extend  over  a  considerable  period 
of  time  it  may  be  necessary  to  cover  such  period  in  the  allegation, 
allegations  of  "from  March  to  September,  1887,"  and  "from 
May  to  October,  1888,"  have  been  countenanced  in  a  case  in  which 
the  accused  was  charged  with  the  neglect  of  a  duty  that  required  con- 
tinuous performance.  (Digest,  p.  48G,  II,  D,  10,  h.)  So,  also,  it  is 
proper  to  allege  that  an  offense  was  committed  while  ''en  route"  be- 
tween certain  points.  (Digest,  p.  480,  II,  D,  9,  l>.)  So  where  the 
exact  time  or  place  of  the  commission  of  the  offense  is  not  known  it 


38  MANUAL  FOB  COURTS-MARTIAL. 

is  frequently  preferable  to  allege  it  as  having  occurred  "  <>n  or  about" 

:  .in  date  or  time,  or  "  at  or  oe  :  am  Locality,  rather  I 

to  aver  it  as  committed  on  a  particular  day  or  between  two  specified 
or  at  a  particular  place.    Ther  L<  fined  construction  to  be 

i  apon  the  words  "on  or  about"  as  used  in  the  allegation  of 
cification.    The  phrase  can  not  be  said  to  cover  any 
precise  number  of  days  or  Latitude  in  time.    It  is  ordinarily  used  in 
military   pleading  for  the  purpose  of  indicating  some  period,  af 
nearly  as  can  be  ascertained  and  set  forth,  at  or  during  which  the 
targed  are  believed  to  have  been  committed — in  cases  where 
day  can  hot  well  be  named.    And  the  same  is  to  be  said  as 
•  use  of  the  words  "  at  or  near  "  in  connection  with  the  averment 
of  place.     (  Digest,  p.  485,  II,  D,  9,  a.)     If  the  specification  alleges 
the  offense  to  have  been  committed  "  on  "  a  certain  date  or  "  at  "  a 
the  court  in  its  findings  may,  by  exceptions  and  substi- 
tutions, find  another  date  or  place  if  the  evidence  supports  such 
ulments,  provided  the  new  date  or  place  is  sufficiently  near  the 
one  alleged  that  an  injustice  is  not  done  the  accused.    In  preparing 
several  specifications  under  one  charge,  the  time  and  place  of  the 
alleged  offense  will  be  given  in  each  specification. 

(h)  Christian  name. — The  Christian  name  of  an  accused  should  be 
used  in  preparing  charges,  but  where  there  are  one  or  more  middle 
names  they  may  be  indicated  by  the  initials  only.  In  the  case  of  a 
person  in  the  military  service  the  name  used  in  the  charges  should 
correspond  to  that  borne  by  the  accused  on  the  muster  rolls  or  the 
Army  register. 

(I)  Charging  under  "alias." — If  the  accused  is  known  by  two 
names,  as  where  a  soldier  enlists  under  a  name  different  from  that 
under  which  he  was  known  in  his  prior  enlistment,  both  the  heading 
of  the  charge  and  the  specification  will  describe  him  under  his  true 
name  and  also  under  his  assumed  name  as  an  alias. 

(j)  General  prisoners. — In  charging  a  general  prisoner  with  an 
offense,  the  form  of  the  charge  will  not  be  changed  but  the  specifica- 
tion will  read  as  follows: 

Tn  thai   General   Prisoner  A B did  [here  allege  the  offense  in 

the  language  prescribed  when  it  is  committed  by  an  officer  or  soldier]. 

It   is  not  i  to  allege  in  the  specification  that  the  genera! 

prisoner  was  formerly  a  soldier,  was  tried  by  a  general  cour 
and  sentenced  to  dishonorable  discharge  and  a  term  of  coni 
and  that  he  committed  the  offense  while  serving  such  confine; 
The  words  "  general  prisoner"  necessarily  import  such  facts. 

[N(  1 1  prisoners  are  persons  sentenced  to  dismissal  or  dishonor- 

able discharge  and  to  terms  of  confinement  al  military  posts  or  elsewhere  I 


COURTS-MARTIAL — PROCEDURE   PRIOR  TO   TRIAL.  39 

(&)  Change  of  rani'. — Where  the  rank  of  the  accused  has  changed 
since  the  commission  of  an  offense,  the  specification  will  read  as  fol- 
lows : 

In   that  Private  A B ,  Company  ,  Infantry,   then 

sergeant,  Company , Infantry,  did,  etc. 

(I)  Written  papers  and  oral  statements. — A  specification  in  alleg- 
ing the  violation  of  an  order  which  has  been  given  in  writing,  or  of 
any  written  obligation — as  an  oath  of  allegiance,  parole,  etc. — should 
preferably  set  forth  the  writing  verbatim,  or  at  least  state  fully  its 
substance,  and  then  clearly  specify  the  act  or  acts  which  constitute 
its  alleged  violation.  Oral  statements  should  be  alleged  in  as  nearly 
the  exact  words  as  possible,  but  should  always  be  qualified  by  the 
words  "or  words  to  that  effect,"  or  some  similar  expression,  since 
proof  will  generally  vary  as  to  some  word  or  words,  particularly  if 
some  time  has  elapsed  since  the  incident.  A  similar  rule  obtains  in 
cases  involving  insubordinate  or  disrespectful  language. 

(m)  Scandalous  and  disgraceful  offenses. — In  framing  charges  it 
is  permissible,  under  the  custom  of  the  service,  after  alleging  the 
facts  in  the  specification,  to  add,  "  This  to  the  scandal  and  disgrace 
of  the  military  service.''  This  form  of  charge  is  appropriate  in  c 
of  particularly  disgraceful  conduct  committed  in  the  presence  of  a 
number  of  persons,  especially  civilians,  or  while  the  offender  was  in 
uniform,  or  under  other  circumstances  resulting  in  publicity. 

(n)  Desertion  followed  by  fraudulent  enlistment. — Enlistment  by 
a  soldier  in  desertion  is  fraudulent.  Such  soldier  should  be  charged 
with  desertion  under  A.  W.  58,  and  with  fraudulent  enlistment 
under  A.  W.  54.  (Cir.  28,  TVar  Dept.,  1908.)  A  fraudulent  enlist- 
ment is  no  defense  to  a  charge  of  desertion  but  is  proof  of  such  deser- 
tion, for  a  soldier  can  not  be  excused  from  repudiating  a  pending 
contract  by  substituting  another  in  its  place.  In  such  a  case  the 
status  of  desertion  remains,  notwithstanding  the  deserter's  presence 
in  the  military  service  under  a  fraudulent  enlistment,  until  he  sur- 
renders as  a  deserter  or  is  apprehended  as  such.  For  a  single  deser- 
tion followed  by  a  fraudulent  enlistment,  but  one  specification  for 
wiU  be  preferred,  in  addition  to  the  specification  for  fraud- 
ulent enlistment. 

[Note.— A.  W.  2ti  ((institutes  a  rule  of  evidence  aud  is  not  a  punitive  article.] 

(o)  Larceny  and  sale  of  public  property. — In  cases  of  larceny  of 
property  (not  described  in  A.  W.  94)  where  the  accused  has  sold  the 
stolen  property,  the  charges  should  not  include  specifications  alleg- 
ing the  sale  except  where  the  same  has  been  made  to  an  innocent 
party  and  constitutes  such  a  fraud  upon  the  purchaser  as  to  warrant 
the  preferment  of  a  specification  based  upon  such  fraud.     Proof  of 


40  MANUAL  FOR  COURTS-MARTIAL. 

a  subsequent  sale  of  stolen  property  goes  to  show  intent  to  steal,  and, 
therefore,  evidence  of  such  sale  should  be  introduced  to  support 
charges  of  larceny,  wherever  available.  Larceny  and  sale  of  United 
States  property  in  violation  of  A.  \V.  94  si;-  uld  each  be  charged  in 
b  ■  h  it  article  denounces  both  offenses. 
(//)  Wording  of  statute  to  he  followed. — Wherever  practicable  th  i 
exacl  words  of  the  articles  of  war  will  be  followed.  A  person  under 
the  influi  ace  of  liquor  which  incapacitates  him  mentally 

or  physically  for  the  proper  performance  of  duty  is  "  drunk."  There- 
fore, under  A.  W.  85  the  word  "  drunk"  will  be  used.  So  in  charg- 
ing other  offenses  involving  drunkenness  no  other  word  or  phrase 
will  be  used  as  a  substitute  for  "  drunk."  Under  such  charges  the 
court  should  not  in  its  findings  substitute  such  phrases  as  "  under  the 
inl  ■■  eating  liquor"  and  '*' intoxicated  "  for  "drunk." 
.  ¥.,  .v..  ;.) 

Section  II. 
ACTION  UPON  CHARGES. 

75.  Submission  of  charges.— All  charges  for  trial  by  court-martial 
will  be  prepared  in  triplicate,  using  the  prescribed  charge  sheet  as  a 
first  sheet  and  using  such  additional  sheets  of  ordinary  paper  as  are 

red.    They  will  be  accompanied — 

(a)  Except  when  trial  is  to  be  had  by  summary  court,  by  a  brief 
statement  of  the  substance  of  all  material  testimony  expected  from 
each  material  witness,  both  those  for  the  prosecution  and  those  for 
the  defense,  together  with  all  available  and  necessary  information  as 
to  any  other  actual  or  probable  testimony  or  evidence  in  the  case ;  and 

(b)  In  the  case  of  a  soldier,  by  properly  authenticated  evidence  of 
convictions,  if  any,  of  an  offense  or  offenses  committed  by  him  during 
bis  current  enlistment  and  within  one  year  next  preceding  the  date 
of  the  alleged  commission  by  him  of  any  offenses  set  forth  in  the 

j;es. 
They  will  be  forwarded  by  the  officer  preferring  them  to  the  officer 
immediately  exercising  summary  court-martial  jurisdiction  over  the 
command  to  which  the  accused  belongs,  and  will  by  him  and  by  each 
superior  commander  into  whose  hands  they  may  come  either  be  re- 
1  to  a  court-martial  within  his  jurisdiction  for  trial,  forwarded 
to  the  next  superior  authority  exercising  court-martial  jurisdiction 
the  command  to  which  the  accused  belongs  or  pertains,  or  other- 
wise disposed  of  as  circumstances  ar  to  require. 

76.  Investigation  of  charges.— If  the  officer  immediately  exercising 
summary  court-martial  jurisdiction  over  the  command  to  which  the 

ed  belongs  or  pertains  decides  to  forward  the  charges  to  superior 
autl,  ill,  before  so  doing,  either  carefully  investigate  them 


COURTS-MARTIAL PROCEDURE  PRIOR  TO  TRIAL.  41 

himself  or  will  cause  an  officer  other  than  the  officer  preferring  the 
charges  to  investigate  them  carefully  and  to  report  to  him,  orally  or 
otherwise,  the  result  of  such  investigation.  The  officer  investigating 
the  charges  will  afford  to  the  accused  an  opportunity  to  make  any 
statement,  offer  any  evidence,  or  present  any  matter  in  extenuation 
that  he  may  desire  to  have  considered  in  connection  with  the  accusa- 
tion against  him.  (See  par.  225  (b),  p.  112.)  If  the  accused  de- 
sires to  submit  nothing,  the  indorsement  will  so  state.  In  his 
indorsement  forwarding  the  charges  to  superior  authority  the  com- 
manding officer  will  include: 

(a)  The  name  of  the  officer  who  investigated  the  charges; 

(I)  The  opinion  of  both  such  officer  and  himself  as  to  whether  the 
several  charges  can  be  sustained; 

(r)  The  substance  of  such  material  statement,  if  any,  as  the  ac- 
cused may  have  voluntarily  made  in  connection  with  the  case  during 
the  investigation  thereof; 

(d)  A  summary  of  the  extenuating  circumstances,  if  any,  con- 
nected with  the  case; 

(e)  His  recommendation  of  action  to  be  taken. 

77.  Prompt  action  required. — No  person  put  in  arrest  shall  be  con- 
tinued in  confinement  more  than  eight  days,  or  until  such  time  as  a 
court-martial  can  be  assembled.  When  any  person  is  put  in  arrest 
for  the  purpose  of  trial,  except  at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the 
charges  on  which  he  is  to  be  tried  is  served  upon  him  within  eight  days 
after  liis  arrest,  and  that  he  is  brought  to  trial  within  ten  days  there- 
after, unless  the  necessities  of  the  service  prevent  such  trial;  and  then 
he  shall  be  brought  to  trial  within  thirty  days  after  the  expiration 
of  said  ten  days.  If  a  copy  of  the  charges  be  not  served,  or  the  ar- 
rested person  be  not  brought  to  trial,  as  herein  required,  the  arrest 
shall  cease.  But  persons  released  from  arrest,  under  the  provisions 
of  A.  W.  TO.  may  be  tried  whenever  the  exigencies  of  the  service 
shall  permit,  within  twelve  months  after  such  release  from  arrest. 
(A.W.70.) 

78.  Determination  of  proper  trial  court- — When  an  officer  who  exer- 
cises court-martial  jurisdiction  receives  charges  against  an  enlisted 
man  it  is  his  duty  to  consider  whether  they  shall  be  tried  by  gen- 
eral, special,  or  summary  court-martial.  He  should  not  withhold 
charges  from  trial  by  special  or  summary  court  solely  for  the  rea- 
son that  the  maximum  limit  of  punishment  is  beyond  the  juris- 
diction of  such  courts  to  impose.  On  the  other  hand,  he  should 
not  refer  to  a  special  or  summary  court-martial  offenses  which  by 
reason  of  their  inherent  gravity  or  of  the  circumstances  surrounding 
their  commission  merit  greater  formality  of  trial  or  more  condign 
punishment  than  is  found  in  the  procedure  or  jurisdiction  of  such 
courts.    No  fixed  rule  can  be  laid  down  and  the  matter  must  be  de- 


42  MANUAL  FOR   COURTS-MARTIAL. 

the  careful  consideration  of  commanders  subject  to 
limitations  that  while,  in  a  proper  rase,  desertion  may  be  tried 
fore  a  special  court,   felonies  and  C  olving  moral  turpi* 

mould  not  be.  am!  capital  crimes  can  not  be  tried  by  special  or  Bum 
niaiy  courts-martial.     (A.  W.  13,  lb    For  list  of  capital  crij 
offenses  see  Chap.  1  V,  Sec  III.) 

79.  Disposition  of  copies  of  charges. —  (a)  When  trial  is  to  be  bad  by 
summary  court  the  original  charge  sheet  will  be  completed  as  the 
record  of  trial.  This  record  will  he  delivered  to  the  personnel  ad- 
jutant, who  will,  after  noting  necessary  data  on  the  pay  card  of  the 
accused,  initial  it  in  the  place  provided  ami  transmit  same  to  the 
company  or  other  commander,  who  will,  after  making  the  I 
entries  on  the  service  record,  initial  and  return  it  to  the  command- 
ing officer  who  appointed  the  court,  in  whose  office  it  will  be  care-i 
fully  preserved  for  a  period  of  two  years,  at  the  end  of  which' time 
it  may  be  destroyed.  A  copy  thereof  will  be  retained  in  the  office  of 
the  commanding  officer  who  appointed  the  court  until  the  original 
record  has  been  returned  for  file,  when  this  copy  may  be  destroyed. 
The  other  copy  will,  with  the  least  practicable  delay,  be  transmitted 
as  the  required  report  of  trial  to  the  officer  exercising  general  court- 
martial  jurisdiction  over  the  command,  there  to  be  filed  in  the  office 
of  the  judge  advocate  until  the  statistical  information  required  for 
tin'  annual  report  of  the  judge  advocate  has  been  secured,  when  it 
may  be  destroyed. 

(7))  When  trial  is  to  be  had  by  special  or  general  court-martial  the 
charges  and  one  copy  thereof  will  be  referred  to  the  trial  judge  advo- 
cate, the  copy  to  be  furnished  by  him  to  the  accused  or  his  counsel, 
and  the  other  copy  will  be  used  for  record  purposes  in  the  office  of  the 
officer  appointing  the  trial  court,  the  top  fold  of  this  copy  of  the 
charge  sheet,  in  case  of  trial  by  general  court-martial,  being  detached 
at  the  proper  time  and  forwarded  with  the  record  of  trial  to  the 
Judge  Advocate  General  of  the  Army.      (< '.  M.  I '.  Jf..  Xo.  4.) 

80.  Service  of  charges  upon  accused. — In  order  that  the  accused  may 

have,  sufficient  time  to  prepare  for  his  defense  it  is  provided  by  A.  TV. 

TO  that  in  time  of  peace  no  person  shall,  against  his  objection,  be 

ght  to  trial  before  a  general  court-martial  within  a  period  of 

ubsequent  to  the  service  of  charges  upon  him. 


CHAPTEK  VII. 
COURTS-MARTIAL— ORGANIZATION. 


Paget 

Section  I:  The  members i4 

81.  Place  of  meeting — Duties  of  members 44 

82.  Uniform 44 

8:}.  Seating  of  court 44 

84.  Roll  call 44 

absence  of  member 44 

86.  Decorum  to  be  observed 45 

87.  Control  of  court  over  accused 45 

88.  Accused  not  to  be  tried  in  irons 45 

89.  Duties  of  the  president 45 

90.  Voting 46 

91.  Closed  sessions 46 

92.  Sitting  with  closed  doors 47 

93.  Change  in  membership 47 

Section  II:  The  judge  advocate 47 

94.  Selection 47 

95.  General  duties 48 

96.  Duty  toward  accused 48 

97.  Examination  of  charges 49 

98.  Whole  truth  to  be  presented 49 

99.  Legal  adviser  of  the  court 49 

100.  Freedom  in  conducting  case 49 

101.  Closed  sessions 50 

102.  Accuser  or  prosecutor 50 

103.  Expediting  trials 50 

104.  Weekly  reports 50 

105.  Detail  of  orderly 50 

Section  III:  Assistant  judge  advocate  51 

106.  Appointment 51 

107.  Duties 51 

Section  IV:  Counsel 51 

108.  Appointment - 51 

109.  Duty  of  officer  as  counsel 52 

110.  Right  to  interview  the  accused 52 

111.  Witnesses,  how  questioned  during  trial 52 

Section  V:  Reporter 52 

112.  Employment 52 

113.  Compensation 53 

Decisions  (a)  to  (/) 53 

114.  Disposition  of  vouchers .0 54 

115.  Detail  of  soldier 54 

116.  Time  limit,  for  completing  record 54 

1 1 7.  ( larl .on  copies  of  the  record 5* 

118.  Extra  compensation  for  clerical  duties 5£ 

Section  VI:  [nterpreter 5l 

119.  Employment  and  pay 55 

43 


44  MANUAL  FOR   COURTS-MARTTAL. 

Section  I. 
THE  MEMBERS. 

81.  Place  of  meeting: — Duties  of  members. — The  authority  appointing 
;i  general  or  special  court-martial  designates  the  place  for  holding 

ourt,  hour  of  meeting,  the  members  of  the  court,  and  the  judge 
advocate.  A  general  or  special  court-martial  assembles  at  its  first 
session  in  accordance  with  the  order  convening  it ;  thereafter,  accord- 
ing to  adjournment.  Courts  will  be  assembled  at  posts  or  stations 
where  trial  will  be  attended  with  the  least  expense.  A  member  sta- 
tioned at  the  place  where  the  court  sits  is  liable  to  duty  with  his 
command  during  adjournment  from  day  to  day.  Subject  to  any  in- 
structions that  may  be  given  by  the  authority  that  appoints  the 
court,  the  court  "will  determine  the  hours  of  holding  its  sessions. 

82.  Uniform. — For  regulations  regarding  uniform  to  be  worn  by 
members  of  courts-martial,  the  judge  advocate,  the  accused,  and  wit- 
nesses see  Regulations  for  the  Uniform  of  the  United  States  Army. 
In  any  case  of  doubt  (as  where  the  court  consists  of  members  but 
recently  mustered  into  the  service),  the  president  of  the  court  will 
designate  the  uniform  in  the  notice  sent  to  members  notifying  them 
of  the  place  and  hour  of  meeting  of  the  first  session. 

83.  Seating  of  court. — When  the  court  is  ready  to  proceed  it  is  called 
to  order  by  the  president.  Members  will  be  seated  according  to 
rank,  alternately  to  the  right  and  left  of  the  president.  The  judge 
advocate,  the  accused,  and  his  counsel  are  seated  so  as  to  be  most 
easily  seen  and  heard  by  all  the  members  of  the  court.  The  reporter 
should  be  seated  near  the  judge  advocate. 

84.  Roll  call. — At  the  beginning  of  each  session  the  judge  advocate 

verifies  the  presence  or  absence  of  the  members  of  the  court  by  calling 

each  officer's  name  or  by  informally  noting  his  presence  or  absence. 

This  verification  is  noted  in  the  record.     (See  Appendices  6,  7  for 

record  of  general  and  special  courts-martial.)     When   the  accused 

and  his  counsel  appear  before  the  court  for  the  first  time  the  judge 

advocate  will  announce  their  names  to  the  court. 

[Note.— For  number  necessary  to  constitute  a  quorum  of  a  general  or  special 
court-martial  and  the  procedure  to  be  taken  when  the  number  Is  reduced  below 

ee  par.  7.] 

85.  Absence  of  member. — A  member  of  a  court-martial  who  knows, 
or  has  reason  to  believe,  that  he  will,  for  a  proper  reason,  be  absent 
from  a  session  of  the  court,  will  inform  the  judge  advocate  accord- 
ingly. When  a  member  of  a  court-martial  is  absent  from  a  session 
thereof,  the  judge  advocate  will  cause  that  fact,  together  with  the 

m  for  such  absence  i  E  known  to  him,  to  be  shown  in  the  record  of 

1 1'  the  reason  for  such  absence  is  not  known  to  the  judge 

advocate,  he  will  cause  the  record  to  show  the  member  as  absent,  cause 


COURTS-MARTIAL ORGANIZATION.  45 

unknown.     In  any  event,  the  appointing  authority  will  take  such 
action,  if  any,  relative  to  such  absence  as  he  may  deem  proper. 

86.  Decorum  to  be  observed. — Trials  before  courts-martial  will  be 
conducted  with  the  decorum  observed  in  civil  courts.  The  conduct 
of  members  should  accordingly  be  dignified  and  attentive.  Reading 
of  newspapers  or  other  evidence  of  inattention  by  members  of  a 
court-martial  during  its  sessions  constitutes  a  neglect  of  duty  to  the 
prejudice  of  good  order  and  military  discipline.  It  is  the  duty  of 
the  president  of  the  court  to  admonish  against  such  inattention,  and 
charges  may  be  preferred  against  a  member  who  does  not  heed  the 
admonition.  A  court-martial  has  no  power  to  punish  its  members, 
but  a  member  is  liable  to  charges  and  trial  for  improper  conduct 
as  for  any  other  offense  against  military  discipline.  Improper  words 
used  by  a  member  should  be  taken  down  in  writing  and  any  dis- 
orderly conduct  reported  to  the  appointing  authority.  During  the 
reading  of  the  order  appointing  the  court  and  the  arraignment  the 
judge  advocate,  the  accused,  and  his  counsel  will  stand;  while  the 
court  and  the  judge  advocate  are  being  sworn  all  persons  concerned 
with  the  trial,  including  any  spectators  present,  will  stand;  when 
the.  reporter,  an  interpreter,  or  a  witness  is  being  sworn  he  and  the 
judge  advocate  will  stand;  and  when  the  judge  advocate,  the  accused, 
or  his  counsel  addresses  the  court,  he  will  rise.  (For  punishment  for 
contempts,  see  Chapter  X,  Sec.  I,  par.  173.) 

87.  Control  of  court  over  accused. — A  court-martial  has  no  control 
over  the  nature  of  the  arrest  or  other  status  of  restraint  of  a  prisoner 
except  as  regards  his  personal  freedom  in  its  presence.  For  the  rela- 
tion between  a  court-martial  and  the  accused  during  trial  as  regards 
arrest,  see  Chapter  V,  Section  I. 

88.  Accused  not  to  be  tried  in  irons. — The  accused  should  not  be 
brought  before  the  court  in  irons,  unless  there  are  good  reasons  to 
believe  that  he  will  attempt  to  escape  or  to  conduct  himself  in  a 
violent  manner,  but  the  fact  that  a  prisoner  has  been  tried  in  irons 
can  not  in  any  case  affect  the  validity  of  the  proceedings. 

89.  Duties  of  the  president. — A  president  of  the  court  will  not  be 
announced.  The  officer  senior  in  rank  present  will  act  as  such.  The 
president  does  not  by  virtue  of  being  such  exercise  command  of  any 
kind.  He  is  in  no  sense  the  commanding  officer  of  the  court,  and 
can  not  by  virtue  of  being  president  give  an  order  to  a  member.  As 
the  organ  of  the  court  he  gives  the  directions  necessary  to  the  regular 
and  proper  conduct  of  the  proceedings;  but  a  failure  to  comply  with 
a  direction  given  by  him,  while  it  maj'  constitute  a  neglect  to  the 
prejudice  of  good  order  and  military  discipline,  can  not  properly 
be  charged  as  a  violation  of  the  sixty-fourth  article  of  war.  (Digest, 
p.  508,  VI,  G,  3.)  Neither  the  court  nor  the  president  is  authorized 
to  place  the  judge  advocate  in  arrest.    Only  the  proper  commanding 


40  MANUAL  FOE   COURTS-MARTIAL. 

officer  can  impose  an  arrest.  It  is  the  duty  of  the  commanding  officer 
to  secure  the  attendance  of  the  accused  before  the  court.  (Digest,  p. 
VII,  C,  - ;  id.,  VII,  C,  3.)  The  president  is  the  presiding  officer 
of  the  court,  and  as  -uch  is  the  organ  of  the  court  to  maintain  order 
and  conduct  its  business.  In  addition,  he  has  the  duties  and  privi- 
leges of  oilier  members.  He  has  an  equal  vote  with  other  members 
in  deciding  all  questions,  including  challenges,  findings,  sentence,  ac- 
quittal, and  adjournments.  He  speaks  and  acts  for  the  court  in 
every  instance  where  a  rule  of  action  has  been  prescribed  by  law, 
regulations,  or  its  own  resolution,  and  has  no  authority  to  open  or 
close  the  court  or  make  a  ruling  upon  the  admissibility  of  evidence, 
the  competency  of  witnesses,  or  method  of  procedure  without  the 
acquiescence  of  the  court  or  by  custom  of  the  service.  He  administers 
the  oath  to  the  judge  advocate  and  authenticates  by  his  signature 
all  acts,  orders,  and  proceedings  of  the  court  requiring  it.  (See 
Winthrop,  p.  249.)  It  is  his  duty  to  take  the  proper  steps  to  insure 
prompt  trial  and  disposition  of  all  charges  referred  for  trial  and  to 
keep  the  court  advised  thereof. 

[Note.— For  the  duties  of  the  president  with  respect  to  protecting  the  rights 
of  the  accused,  see  paragraphs  149  <::>  (h),  154  (d),  154  (<  I,  and  215,  and 
wit!  respect  to  protecting  an  Ignorant  witness,  see  paragraph  234.]  (C.  .!/. 
0.  M..  No.   ',.) 

90.  Voting. — Members  of  a  general  or  special  court-martial,  in 
giving  their  votes,  shall  begin  with  the  junior  in  rank.  (A.  W.  31.) 
In  all  deliberations,  including  those  on  challenges,  findings,  sentence, 
acquittal,  and  adjournments,  the  law  secures  the  absolute  equality 
of  the  members,  the  president  having  no  greater  rights  in  such  mat- 
ters than  any  other  member.  A  tie  vote  on  the  findings  is  a  vote 
of  "  not  guilty  " ;  a  tie  vote  on  a  proposed  sentence  or  on  a  challenge 
or  any  objection  or  motion  is  a  vote  in  the  negative.  The  sentence 
is  not  adopted  and  the  challenge,  objection,  or  motion  is  not  sustained. 
When  the  offense  charged  includes  a  minor  offense,  voting  shall 
first  be  had  upon  the  major  offense. 

All  convictions  and  sentences  (other  than  those  involving  death), 
whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present.  (A.  W.  43.)  Refusal  to  vote  on 
any  question  arising  during  the  proceedings  constitutes  a  neglect  to 
the  prejudice  of  good  order  and  military  discipline  punishable  under 
A.  W.  Co.  (For  voting  on  findings  and  sentence,  see  Chap.  XII, 
Sec.  II.) 

91.  Closed  sessions. — Members  take  an  oath  not  to  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the  court- 
martial.  (See  A.  W.  19.)  In  order  to  avoid  disclosing  or  discov- 
ering such  vote  or  opinion  the  court  is  closed  while  voting  upon 
any  question.  When  the  court  is  closed  all  persons  (including 
the  judge  advocate)  withdraw.  In  important  cases,  where  delay 
would  ensue  <lue  to  the  number  of  spectators  present,  the  court  itself 
may  withdraw  to  another  room  prepared  for  the  purpose  for  delib- 
erating in  closed  session.  It  is  not  necessary,  however,  for  the  court 
to  go  into  closed  session  in  every  case  requiring  action,  where  such 


COURTS-MARTIAL ORGANIZATION.  47 

action  would  be  unanimous  and  business  can  properly  be  transacted 
without  disclosing  the  vote  or  opinion  of  any  member.  Thus,  on  a 
request  by  the  judge  advocate  or  the  accused  for  a  short  recess,  it  is 
proper  for  the  president  to  announce  "  without  objection,  the  request 
will  be  granted,'1  or  words  to  that  effect.  Similarly,  if  the  accused 
objects  to  a  member  because  he  preferred  the  charges  and  is  the 
accuser  and  the  member  admits  the  fact,  he  may  be  excused  without 
going  into  closed  session.  Care  will  be  taken  in  such  cases  that  no 
votes  are  taken  in  open  session.  If  any  member  believes  the  matter 
should  be  passed  upon  in  closed  session,  it  is  proper  for  him  to  move 
that  the  court  be  closed,  whereupon  the  president  will  announce  that 
the  court  will  be  cleared. 

92.  Sitting  with  closed  doors. — A  court-martial  is  authorized,  in  its 
discretion,  to  sit  with  doors  closed  to  the  public.  Except,  however, 
when  temporarily  closed  for  deliberation,  courts-martial  in  this 
country  are  almost  invariably  open  to  the  public  during  a  trial.  But 
m  a  x  articular  case  where  the  offenses  charged  were  of  a  scandalous 
nature,  it  was  recommended  that  the  court  be  directed  to  sit  with 
doors  closed  to  the  public.     (Digest,  p.  516,  IX,  C.) 

93.  Change  in  membership. — Although  it  is  undesirable  to  change 
the  membership  of  a  court  during  a  trial  it  is  within  the  discretion 
of  the  appointing  officer  in  ;.  proper  case,  to  relieve  members  or  ap- 
point new  members.  The  promotion  of  a  member  during  the  trial 
of  a  case  does  not  affect  his  competency  as  a  member.  He  should 
sit  according  to  his  changed  rank.  The  rule  is  that  no  member  who 
has  been  absent  during  the  taking  of  evidence  shall  thereafter  take 
part  in  the  trial;  but  the  nonobservance  of  this  rule  shall  not  be  con- 
strued as  invalidating  the  proceedings  of  courts-martial  if  no  ob- 
jection is  made,  and  the  court  permits  the  member  to  sit.  The  rule, 
however,  should  be  complied  with  when  practicable.  Especially 
should  a  member  who  has  been  absent  during  an  important  part  of 
the  proceedings  not  be  permitted  to  resume  his  seat.  Where  a  mem- 
ber who  has  been  absent  is  permitted  to  resume  his  seat,  or  a  new 
member  is  added  after  the  trial  of  the  case  has  begun,  all  proceedings 
and  evidence  during  his  absence  should  be  read  over  to  him  in  open 
court  before  the  case  proceeds  further  and  the  record  should  show 
this  fact;  but  in  proceedings  in  revision  the  presence  of  any  member 
who  did  not  vote  on  the  findings  and  sentence  will  invalidate  the 
proceedings  in  revision. 

Section  II. 
THE  JUDGE  ADVOCATE. 

94.  Selection. — The  prompt,  speedy,  and  thorough  trial  of  a  court- 
martial  case  is  principally  dependent  upon  the  judge  advocate.  He 
will,  accordingly,  be  carefully  selected.    Where  it  can  be  avoided,  no 


MANUAL  FOR   COURTS- MARTIAL. 

officer  will  he  detailed  as  judge  advocate  of  a  general  court-martial 
until  he  lias  had  experience  as  a  member  or  as  an  assistant  judge 
advocate  of  a  court. 

95.  General  duties. — The  judge  advocate  of  a  general  or  special 
court-martial  shall  prosecute  in  the  name  of  the  United  States,  and 
shall,  under  the  direction  of  the  court,  prepare  the  record  of  its  pro- 
ngs. (A.  W.  IT.)  Before  the  court  assembles  the  judge  advo- 
cate will  obtain  a  suitable  room  for  the  court,  see  that  it  is  in  order, 
procure  the  requisite  stationery,  summon  necessary  witnesses,  make 
a  preliminary  examination  of  the  latter,  and,  as  far  as  possible,  sys- 

tize  his  plans  for  conducting  the  case.  During  the  trial  he  exe- 
cutes all  orders  of  the  court:  reads  the  appointing  order  and  any 
modifying  orders  to  the  accused;  swears  the  members  of  the  court, 
the  reporter,  interpreter,  and  all  witnesses;  arraigns  the  accused; 
examines  witnesses;  keeps  or  superintends,  under  the  direction  of  the 
court,  the  keeping  of  a  complete  and  accurate  record  of  the  proceed- 
ings:  and  ailixes  his  signature  to  each  day's  proceedings.  Whenever 
the  court  adjourns  to  meet  at  the  call  of  the  president,  the  judge 
advocate  will  notify  the  members  of  the  time  designated  by  the  presi- 
dent for  reassembling.  In  conjunction  with  the  president  of  the 
court,  he  authenticates  the  record  by  his  signature  and,  at  the  end  of 
the  trial,  transmits  the  same  to  the  reviewing  authority.  In  case  the 
record  can  not  be  authenticated  by  the  judge  advocate  by  reason  of 
his  death,  disability,  or  absence,  it  shall  be  signed  by  the  president 
and  an  assistant  judge  advocate,  if  any ;  and  if  there  be  no  assistant 
judge  advocate,  or  in  case  of  his  death,  disability,  or  absence,  then 
by  the  president  and  one  other  member  of  the  court.    (A.  W.  33.) 

96.  Duty  toward  accused. — Should  the  accused,  for  any  reason,  not 
be  represented  by  counsel,  the  judge  advocate  shall,  from  time  to 
time  throughout  the  proceedings,  advise  him  of  his  legal  rights. 
(A.W.  17.)     He  should— 

(a)  Acquaint  'he  prisoner  with  the  accusations  against  him; 

(b)  Inform  him  of  his  right  to  have  counsel ; 

(c)  Inform  him  of  his  right  to  testify  in  his  own  behalf;  and 

(d)  Inform  him  of  his  right  to  have  a  copy  of  the  charges. 

He  may  ask  a  prisoner  how  he  intends  to  plead,  but  he  should  in 
no  case  try  to  induce  him  to  plead  guilty,  or  leave  him  to  infer  that 
if  he  does  so  his  punishment  will  be  lighter.  (Winthrop,  p.  203.) 
When  the  accused  determines  to  plead  guilty  the  judge  advocate 
ahould  advise  him  of  his  right  to  introduce  evidence  in  explanation 
of  his  offense,  and  should  assist  him  in  securing  it.  During  the  trial 
he  will  see  that  the  accused  has  full  opportunity  to  interpose  such 
pleas  and  make  such  defense  as  may  best  bring  out  the  facts,  the 
merits,  or  the  extenuating  circumstances  of  his  case.  In  so  far  as 
such  action  may  be  taken  without  prejudice  to  the  rights  of  the  ac- 


COURTS-MARTIAL ORGANIZATION.  49 

cused.  any  advice  given  him  by  the  judge  advocate  should  be  given 
or  repeated  in  open  court  and  noted  upon  the  record. 

97.  Examination  of  charges. — The  judge  advocate  will  note  and 
report  to  the  convening  authority  any  irregularity  in  the  order  con- 
vening the-  court  and  see  that  the  charges  are  technically  and  cor- 
rectly drawn.  He  may  ordinarily  correct  obvious  mistakes  of  form, 
or  slight  errors  in  names,  dates,  amounts,  etc.,  but  he  will  not.  without 
the  authority  of  the  convening  officer,  make  substantial  amendments 
in  the  allegations,  or— least  of  all— reject  or  withdraw  a  charge  or 
specification  or  substitute  a  new  and  distinct  charge  for  one  trans- 
mitted to  him  for  trial  by  the  proper  superior.  (Digest,  p.  496, 
IV.  B,  1.)  It  is  the  duty  of  the  president  as  well  as  the  judge 
advocate  of  every  court-martial  to  examine  carefully  the  indorse- 
ment on  the  charges  when  referred  for  trial  in  order  that  an  accused 
m:i\  not  be  brought  to  trial  before  the  wrong  court. 

98.  Whole  truth  to  be  presented. — Throughout  the  trial  the  judge 
advocate  should  do  his  utmost  to  present  the  whole  truth  of  the -mat- 
ter in  question.  He  should  oppose  every  attempt  to  suppress  facts 
or  to  distort  them,  to  the  end  that  the  evidence  may  so  exhibit  the 
case  that  the  court  may  render  impartial  justice. 

99.  Legal  adviser  of  the  court. — While  the  court  is  in  open  session  the 
judge  advocate  should  respectfully  call  the  attention  of  the  court 
to  any  apparent  illegalities  in  its  action,  and  to  any  apparent  irregu- 
larities in  its  proceedings.  He  should  act  as  legal  adviser  of  the 
court  so  far  as  to  give  his  opinion  upon  any  point  of  law  arising 
during  the  trial,  when  it  is  asked  for  by  the  court,  but  not  otherwise. 
(See,  however,  par.  107.  p.  9G.)     When  his  legal  advice  or  assistanee 

equired  it  will  be  obtained  in  open  court.     In  case  the  accused 

desires  to  plead  guilty  the  judge  advocate  will,  whenever  necessary. 

invite  the  attention  of  the  president  of  the  court  to  the  fact  that 

the  effect  of  such  plea  must  be  explained  to  him.     (See  Chap.  IX, 

II,  "Pleas  to  the  general  issue.") 

100.  Freedom  in  conducting  ease. — The  judge  advocate  should  be  left 
free  by  the  court  to  introduce  his  evidence  in  such  order  as  he  sees 
fit,  and  in  general  to  bring  cases  to  trial  in  such  order  as  he  deems 

(Winthrop,  pp.  281-283.)  But  while  it  is  not  the 
province  of  the  court  to  direct  or  control  the  judge  advocate  in  his 
prosecution  of  the  case,  it  is  responsible  for  the  thorough  investiga- 
tion of  the  case,  and  need  not  content  itself  with  the  evidence  brought 
out  by  the  prosecution  ami  defense.  It  is  proper  for  the  court  as 
a  body  or  for  any  member  to  ask  questions  of  a  witness  if  it  is  be- 
!;»  ved  the  examination  already  submitted  has  failed  fully  to  develop 
the  ually   such   questions   are   not    asked    until    after  the 

prosecution  and  defense  have  fully  completed  their  examination  of 
— 5 


50  MANUAL   FOR  COURTS-MAIM  I A  L. 

the  "witness.  The  court  may  direct  that  the  judge  advocate  recall  a 
witness,  secure  the  attendance  of  a  particular  witness;,  or  that  he 
introduce  evidence  on  a  particular  point.  It  is  the  duty  of  the  court 
to  take  such  action  if  it  believes  that  thereby  the  facts  in  the  case 
will  be  more  clearly  presented. 

101.  Closed  sessions.— Whenever  a  general  or  special  court-martial 
shall  sit  in  closed  session,  the  judge  advocate  and  the  assistant  judge 
advocate,  it'  any.  shall  withdraw:  and  when  their  legal  advice  or  their 
assistance  in  referring  to  the  recorded  evidence  is  required,  it  shall 
be  obtained  in  open  court  and  in  the  presence  of  the  accused  and  of 
his  counsel  if  there  be  any.  (A.  \V.  30.)  If  through  mistake  or 
inadvertence  the  judge  advocate  should  be  present  during  the  whole 
or  a  part  of  a  closed  session  of  the  court,  such  irregularity  is,  subject 
to  the  provisions  of  A.  W.  37,  ground  for  a  disapproval  of  the  pro- 
ceedings by  the  reviewing  authority,  but  it  does  not  deprive  the  court 
of  jurisdiction  and  courts  of  the  United  States  do  not  interfere  in 
such  a  case  to  release  a  prisoner  by  "writ  of  habeas  corpus.  (Ex 
pane  Tucker,  212  Fed.  Rep.,  569;  see  also  A.  W.  37.) 

102.  Accuser  or  prosecutor. — The  judge  advocate  is  not  challengeable ; 
but  in  case  of  personal  interest  in  the  trial  or  of  personal  hostility  to- 
ward the  accused  he  should  apply  to  the  convening  authority  to  be 
relieved. 

103.  Expediting  trials. — Charges  to  be  tried  by  a  general  or  special 
court-martial  are  referred  to  the  judge  advocate  of  the  court.  It  is 
his  duty  to  bring  them  to  trial  promptly.  In  most  cases  tried  by 
court-martial  the  facts  are  few  and  simple,  and  the  witnesses  are 
officers  or  soldiers  stationed  at  the  post  where  the  trial  is  had. 
Usually  the  members  of  the  court,  judge  advocate,  and  accused  and  his 
counsel  are  stationed  at  the  same  post.  In  such  cases  the  prelimi- 
nary investigation,  reference  for  trial,  and  the  trial  should  take  place 
promptly.  If  the  other  official  duties  of  the  judge  advocate  and  coun- 
sel do  not  leave  time  to  prepare  cases  properly  and  to  bring  them  to 
trial  promptly  the  president  will  advise  the  commanding  officer  with 
a  view  to  their  being  relieved  from  other  duties. 

104.  Weekly  reports. — On  Saturday  of  each  week  each  judge  advo- 
of  a  general  court-martial  will  report,  through  the  president  of 

the  court  and  the  commanding  officer,  to  the  appointing  authority,  a 
list  of  charges  on  hand,  showing  the  date  of  receipt  of  each;  and  if 
any  case  has  been  in  the  hands  of  the  judge  advocate  for  one  week  or 
more  and  the  record  of  trial  has  not  been  forwarded  to  the  convening 
authority,  the  report  will  include  a  statement  of  the  reasons  for  the 
delay.  No  record  need  be  made  of  this  report  by  the  president  of  the 
court  or  the  commanding  officer. 

105.  Detail  of  orderly. — The  commanding  officer  will  detail,  when 
3ary,  suitable  soldiers  as  clerks  or  orderlies 'to  assist  the  judge 


COURTS-MARTIAL ORGANIZATION.  51 

advocate  of  a  general  or  special  court-martial  or  military  commission, 
or  the  recorder  of  a  court  of  inquiry. 

Section  III. 
ASSISTANT  JUDGE  ADVOCATE. 

106.  Appointment.— The  authority  appointing  a  general  court 
martial  shall  appoint  one  or  more  assistant  judge  advocates  when 
necessary.  (A.  W.  11.)  An  assistant  judge  advocate  of  a  general 
court-martial  shall  be  competent  to  perform  any  duty  devolved  by 
law,  regulation,  or  the  custom  of  the  service  upon  the  judge  advocate 
of  the  court.     (A.  W.  116.) 

107.  Duties. — An  assistant  judge  advocate  will  perform  such  duties 
in  connection  with  the  trial  as  the  judge  advocate  may  designate.  Or- 
dinarily he  will  be  expected  to  relieve  the  judge  advocate  of  minor 
details,  such  as  arranging  for  a  place  of  meeting  of  the  court,  sta- 
tionery, and  messenger  service,  stenographers  and  interpreters, 
subpoenaing  witnesses,  and  notifying  the  court  of  the  place  and 
hour  of  meeting.  During  trial  he  will  be  expected  to  see  that 
witnesses  are  on  hand  when  needed,  that  all  details  of  procedure  arc 
observed  and  the  record  accurately  kept.  He  may  also  be  intrusted 
by  the  judge  advocate  with  the  investigation  before  trial  and  proof 
during  trial  of  any  special  phase  of  the  charges,  or  he  may,  where  the 
judge  advocate  is  otherwise  engaged,  take  charge  of  the  complete 
trial  of  a  case.  (See  also  A.  W.  33.)  While  the  judge  advocate  and 
assistant  judge  advocate  will  ordinarily  be  present  during  trial,  i 
their  duties  require  the  presence  of  either  of  them  elsewhere,  he  may 
be  excused  by  the  court ;  but  the  fact  of  his  withdrawal  or  absence, 
the  reason  therefor,  and  his  return  to  the  court  will  be  noted  in  the 
record.  (See  form  for  record  of  a  general  court-martial,  Ap- 
pendix 6.) 

Wherever  in  this  Manual  the  judge  advocate  of  a  general  court- 
martial  is  mentioned,  the  term  will  be  understood  to  include  assistant 
judge  advocates,  if  any,  unless  the  context  shows  clearly  that  \-. 
ferent  sense  is  intended. 

Section  IV. 

COUNSEL. 

108.  Appointment.— The  accused  shall  have  the  right  to  be 
sented  before  a  general  or  special  court-martial  by  counsel  of  his 
selection,  for  his  defense,  if  such  counsel  be  reasonably  available. 
W.  17.)     Civilian  counsel  will  not  be  provided  at  the  expense  > 
Government.     (Digest,  p.  r>0(>,  V,  G,  5.)     Should  the  accuse  !  i 
the  appointment  as  his  counsel  of  an  officer  .stationed  at  tl 


52  MANUAL   FOR   COUR'I  S-  M  AKT1AL. 

where  the  court  sits,  and  such  officer  be  not  a  member  of  the  court, 
the  commanding  officer  will  appoint  such  officer  as  counsel  if  he  is 
Qably  available.  Should  the  commanding  officer  decide  that 
the  officer  desired  by  the  accused  is  not  reasonably  available,  the  ac- 
■:il  to  the  officer  appointing  the  court,  whose  decision 
shall  be  final.  II"  the  counsel  desired  bj  the  accused  is  not  ond<  r  the 
i  ontrol  of  the  commanding  officer  where  the  trial  is  held,  application 
for  counsel  will  be  submitted  by  the  accused  in  writing  to  the  ap- 
pointing authority,  whose  decision  as  to  whether  the  officer  desired- 
is  "reasonably  available"  is  final.  Officers  of  the  Judge  A.dvo 
General's  Department  are  not  available  for  appointment  as  counsel 
for  the  defense  in  trials  by  courts-martial. 

109.  Duty  of  officer  as  counsel. — An  officer  acting  as  counsel  before  a 
,il    or   special    court-martial    should    perform   such    duties   as 

usually  devolve  upon  the  counsel  for  a  defendant  before  civil  courts 
in  criminal  cases.  He  should  guard  the  interests  of  the  accused  by 
all  honorable  and  legitimate  means  known  to  the  law,  but  should  not 
obstruct  the  proceedings  with  frivolous  and  manifestly  useless  ob- 
jections or  discussions. 

110.  Right  to  interview  the  accused. — An  accused,  even  if  in  close 
st,  will  be  allowed  to  have  such  interviews  with  his  counsel,  mili- 
tary or  civil,  as  may  be  required  in  order  to  prepare  his  defense. 
Counsel  will  also  be  permitted  to  have  interviews  with  any  other 
person  who  may  be  a  witness  for  the  accused,  or  whose  knowledge 
of  facts  may  be  useful  to  the  accused  in  preparing  for  trial. 

111.  Witnesses,  how  questioned  during  trial.— If  the  judge  advocate 
personally  prepares  the  record  the  counsel  will  be  required  to  re- 
duce  his  questions  and  arguments  to  writing;  but  if  the  court  has  a 
stenographic  reporter,  the  counsel  will  be  allowed  to  question  wit- 
ami  address  the  court  orally. 

Section  V. 
REPORTER. 

112.  Employment.— Under  such  regulations  as  the  Secretary  of  War 
may  from  time  to  time  prescribe,  the  president  of  a  court-martial 
or  military  commission,  or  a  court  of  inquiry,  shall  have  power  to 
appoint  a  reporter,  who  shall  record  ih>'  proceedings  of  and  testi- 
mony taken  before  such  court  or  commission  and  may  set  down  the 

e,  in  the  first  instance,  in  shorthand.  (A.  W.  L15.)  Reporters 
will  be  employed  onlj  when  authorized  by  the  appointing  authority. 
They  will  not  be  authorized  for  special  courts-martial,  except  when 
the  appointing  authority  directs  that  the  testimony  be  reduced  to 
w  riting. 
[Notb.—  For  form  "f  oath  for  reporter  see  par.  131    I 


COURTS-MARTIAL ORGANIZATION.  53 

113.  Compensation — Decisions. — The  reporter  shall  be  paid  at  the 
following  rates  of  compensation  by  the  Quartermaster  Corps  on 
vouchers  certified  to  be  correct  by  the  judge  advocate  or  recorder: 

(a)  For  each  case  not  to  exceed  $1  an  hour  for  time  actually  spent 
in  court  during  the  trial  or  hearing,  except  when  the  court  or  com- 
mission sits  less  than  three  hours  during  the  first  day.  when  the 
allowance  for  such  day  shall  be  $3.  Time  will  be  reckoned  to  the 
nearest  half  of  an  hour. 

•  (//)  Fifteen  cents  for  each  100  words  for  transcribing  notes  and 
making  that  portion  of  the  original  record  which  is  typewritten; 
but  no  allowance  shall  he  made  for  the  first  carbon  copy  of  that 
portion  of  the  record  which  is  typewritten  or  for  original  papers 
which  are  appended  as  exhibits. 

(c)  Ten  cents  for  each  100  words  for  copying  papers  material 
to  the  inquiry,  and  2  cents  for  each  100  words  for  each  carbon  copy 
of  the  same,  when  ordered  by  the  court  or  commission  for  its  use. 

(d)  Two  cents  for  each  100  words  for  the  second  and  each  addi- 
tional carbon  copy  of  the  record  when  authorized  by  the  convening 
authority. 

(e)  Except  for  such  part  of  the  journey  as  may  be  covered  by 
Government  transportation,  mileage  at  the  rate  authorized  for  a 
civilian  witness  not  in  Government  employ  and  $3  a  day  for  ex- 
penses when  the  judge  advocate  or  recorder  keeps  him,  at  his  own 
expense,  away  from  his  usual  place  of  employment  for  twenty-four 
hours  or  more,  on  public  business  referred  to  the  court  or  commission, 
shall  be  allowed  the  reporter  for  himself,  and,  when  ordered  by  the 
court  or  commission,  for  each  necessary  assistant. 

(/)  "When  a  stenographic  reporter  is  authorized  for  a  special 
court-martial  only  one  copy  of  the  proceedings  will  be  required,  and 
for  transcribing  notes  and  making  that  part  of  the  record  of  a  trial 
by  special  court-martial  which  is  typewritten,  the  reporter,  other 
than  an  enlisted  man.  shall  receive  13  cents  for  each  100  words. 

[Note. — The  following  decisions  regarding  compensation  of  reporters  will  be 
observed  in  preparing  vouchers: 

i'i)  The  payment  t<>  a  reporter  of  impleted  by  him  is  not 

authorized  when  more  than  one  ease  is  disposed  of  in  one  day.  each  case  re- 
quiring less  than  three  hours  in  which  to  ho  completed,  but  simply  guarantees 
the  reporter  at  least  *■'*>  for  each  day  that  the  court  or  commission  sits  when 
a  now  ease  is  taken  up  for  that  day.     (dr.  81,  War  Dept,  1908.) 

i'/i  in  determining  tin-  period  for  which  a  reporter  is  entitled  to  the  allow- 
ance  of  $3  a  day  for  expenses  when  kepi  away  from  his  usual  place  of  employ- 
ment time  should  be  counted  from  the  date  on  which  he  is  required  to  leave 
his  usual  place  of  business  by  the  terms  of  his  employment  to  the  date  of 
bis  return  thereto,  provided  there  he  no  unnecessary  delay  in  the  travel  to 
and  from  the  place  where  the  court  meets.  (Par.  1244,  Manna!  (}.  M.  Corps, 
1916.) 

i'  i  The  fact  thai  a  reporter  returns  each  uighi  to  his  home  doe-  do!  pre- 
clude the  view  that  he  was  kept  away  from  his  place  of  business  for  24  hours. 
not,  however,  entitled  to  mileage  for  such  journeys  unless  the  sessions 
of  the  court  are  held  on  noucousecutive  days.     (Op.  J.  A.  C,  Sept.  7,  1910.) 


6-i  -MAM'AL  FOR   COURTS-MA ItTIAL. 

I  a  reporter  Bervlng  two  Beparate  courts-martial  on  the  same  day  is  en- 
titled  to  have  hla  alio  cept   mileage)   computed  separately  for  each 

court    (Op.  J.  a.  <;..  Oct  IB,  L910.) 

(■  |   a  reporter  duly  employed,  but  who,  after  arrival  at  court,  performs  no 
service,  owing  to  adjournment  is  entitled  to  mileage,  $3  for  constructive  service, 
i  the  additional  $3  if  kepi  away  from  place  of  business  for  24  hours. 
(Op.  .1.  A.  (,..  Feb.  in  LOU  :  June  4,  1914.) 

The  abbreviations  "Q.,M  standing  for  the  word  question,  ami  "A.," 
Btai.'linu'  I'm-  the  word  answer,  ami  ail   dates  as  "25th"  and  "  1914"  will  each 

intcd  as  one  w.>rd.  Punctuation  marks  will  not  be  counted  as  a  word. 
It  is  nol  necessary  t'<>r  (lie  judge  advocate  to  count  the  actual  number  <>f 
words  on  everj  page  to  justify  him  in  certifying  the  account  of  the  reporter, 
lie  may  ascertain  the  total  number  of  words  by  counting  the  words  on  a 
sufficient  number  of  pages  to  enable  him  to  ascertain  a  fair  average  of  the 
number  <>f  words  on  a  page  ami  then  ascertain  the  total  by  multiplying  this 
average  by  the  number  of  pages.    (Op.  J.  A.  G.,  Oct.  22,  1909;  Feb.  S,  1915.)] 

114.  Disposition  of  vouchers. — The  original  voucher  for  payment  of 
the  reporter  will  lie  properly  completed  and  certified  by  the  judge 
advocate  ami  will  be  sent  for  payment  to  the  nearest  disbursing 
quartermaster.  A  carbon  copy  of  the  voucher  will  be  forwarded 
with  the  record  for  the  information  of  the  appointing  authority. 

[Note. — For  form  of  voucher  for  payment  of  reporter,  see  Appendix  IS.] 

115.  Detail  of  soldier. — A  soldier  may  be  detailed  to  serve  as  a  steno- 
graphic reporter  for  general  courts-martial,  courts  of  inquiry,  and 
military  commissions,  and  while  so  serving  shall  receive  extra  pay  at 
the  rate  of  not  exceeding  five  cents  for  each  one  hundred  words  taken 

n  shorthand  and  transcribed,  such  extra  pay  to  be  met  from  the 
annual  appropriation  for  expenses  of  courts-martial.  (Act  of  A.ug. 
L'k  1912,  ."-7  Stat..  575.)  Such  detail  will  be  made  only  when  a  re- 
porter is  authorized  by  the  appointing  authority.   (CM.  t '.  J/...Y  ■. .;. ) 

116.  Time  limit  for  completing  record. — The  judge  advocate  or 
recorder  shall  require  the  reporter  to  furnish  the  typewritten  record 
of  the  proceedings  of  each  session  of  the  court  or  commission  (together 
with  one  carbon  copy  of  the  same)  not  later  than  twenty-four  hours 
after  the  adjournment  of  that  session.  The  complete  record  will  be 
fn  [shed,  indexed,  bound,  and  ready  for  authentication  not  later  than 
forty-eight  hours  after  the  completion  of  its  action  by  the  court  or 
commission  on  the  merits  of  the  case  or  hearing. 

117.  Carbon  copies  of  the  record. — Whenever  a  record  of  a  trial  of 
pal  court-martial  is  to  be  typewritten  by  a  reporter,  the  judge 

o  ate  will  inform  the  accused  of  his  right  to  demand  a  copy  of 
the  record,  and  will  require  of  him  a  statement  as  to  whether  or  not 
he  desires  a  copy.     II'  the  answer  be  in  the  affirmative,  the  judge 
■■!•'  will  c  reporter  to  prepare  a  carbon  copy;  this  copy 

will  be  turned  over  to  the  accused.  11*  the  answer  be  in  the  negative, 
no  carbon  copy  will  be  prepared.     In  either  case,  notation  of  the 

OCl  ion  takeii'will  be  made  on  the  index  sheet  of  the  record.     (  See  form 

for  record  of  general  court-martial,  Appendix  6.)  In  case  of  joint 
trials,  the  judge  advocate  will,  in  case  a  stenographer  is  employed, 


COURTS-MARTIAL — ORGANIZATION.  55. 

have  one  copy  of  the  record  ma.de  for  each  of  the  accused  requesting 
the  same.  When  records  of  trial  by  general  court-martial  are  type- 
written, the  copyable  ribbon  will  be  used.     (C.  M.  C.  J/.,  No.  1.) 

118.  Extra  compensation  for  clerical  duties. — Xo  person  in  the  mili- 
tary or  civil  service  of  the  Government  can  lawfully  receive  extra 
compensation  for  clerical  duties  performed  for  a  military  court, 
except  as  a  reporter  duly  appointed  or  detailed  as  such,  as  provided 
in  paragraphs  112  and  115,  swpra;  and,  except  as  authorized  in  para- 
graph 115,  no  person  in  the  civil  or  military  service  will  be  entitled 
to  extra  compensation  for  service  as  a  reporter  unless  such  service 
is  rendered  in  time  outside  of  the  business  hours  of  his  regular  em- 
ployment and  does  not  interfere  with  his  performance  of  his  regular 
duties.     {C.  V.  0.  V.,Xo.  I) 

Section  VI. 

INTERPRETER. 

119.  Employment  and  pay. — Under  such  regulations  as  the  Secretary 
of  "War  may  from  time  to  time  prescribe,  the  president  of  a  court- 
martial  or  military  commission,  or  court  of  inquiry,  or  a  summary 
court,  may  appoint  an  interpreter,  who  shall  interpret  for  the  court 
or  commission.  (A.  W.  115.)  Interpreters  may  be  employed  when- 
ever necessary  without  application  to  the  appointing  authority. 
They  will  be  allowed  the  pay  and  allowances  of  civilian  witne 
which  will  be  paid-  by  the  Quartermaster  Corps  on  vouchers  certified 
by  the  judge  advocate  or  recorder. 

[Note. — For  oath  of  interpreter  see  par.  130. ] 


CHAPTER  VIII. 
COURTS-MARTIAL— ORGANIZATION. 

(Continued.) 


Section  I :  Challenges '"J 

120.  Occasion  for 57 

L2 !    Grounds  for  challenge ^8 

(a)  Principal  challenges,  (1)  to  (8) 58 

(b)  Challenges  for  favor ;)8 

122.  (  hallenge  of  new  member ;j8 

123.  <  hallenge  by  judge  advocate ^9 

124.  Member  can  not  challenge 59 

125.  Procedure  upon  challenges 59 

V2<].  Member  disqualified  but  not  challenged 53 

127.  Waiver  of  objection 59 

128.  Liberality  required °9 

1 29 .  Member  as  accuser  or  witness  for  the  prosecution 60 

130.  Member  signing  charges — when  accuser 60 

131.  Member  of  court  as  witness 60 

Section  T I :  Oaths 61 

132.  <  >ath  of  members G1 

(a)  Oath,  (b)  Affirmation,  (c)  Court  sworn  for  each  case,  (rf)  Addi- 

al  ceremony,  (e)  Decorum  in  administering  oath 61 

133.  Oath  of  judge  advocate 62 

134.  Oath  of  witness 62 

(a)  Oath,  (b)  Swearing  judge  advocate 62 

135.  Oath  of  reporter 62 

136.  Oath  of  interpreter 62 

137.  Oath  to  test  competency 62 

138.  Oaths  for  administrative  purposes 63 

;    S.  183,  (6)  A.W.  114 63 

Section  111:  Continuances 63 

139.  Authority  for - 63 

MO.  Reason  for  application  to  be  stated 63 

141.  Number  of  continuances ' 

Section  IV:  Completion  of  organization '■* 

142.  When  accomplished 64 


Section  I. 
CHALLENGES. 


120.  Occasion  for.— The  composition  of  the  court-martial  havii 
made  known  to  the  accused  by  the  reading  of  the  appointing  order, 
together  with  any  orders  which  have  operated. to  modify  the  compo- 

57 


58  MANr.U.   FOR   COUBTB-MABTIAL. 

sition  of  the  court  as  originally  constituted,  he  is  asked  by  the  judge 
advocate  whether  he  objects  to  being  tried  by  any  member  present 
named  in  the  order  and  modifying  orders.  If  his  reply  be  in  the 
negative,  the  court  and  judge  advocate  are  sworn:  if,  on  the  other 
hand,  the  accused  has  objection  to  a  member,  he  exercises  his  right  in 
this  respect  by  challenging,  in  turn,  each  member  to  whom  he  objects 
Members  of  ageneral  or  special  court-martial  may  be  challenged  by  the 
accused,  bul  only  for  cause  stated  to  the  court.  The  court  shall  deter- 
mine the  relevancy  and  validity  thereof,  and  shall  not  receive  a  chal- 
lenge to  more  than  one  member  at  a  time.  (A.  W.  18.)  Neither  a 
summary  court  officer  nor  the  judge  advocate  of  a  general  or  special 
court-martial  is  subject  to  challenge.  (Digest,  p.  502,  IV,  X;  Davis, 
p.  85,  n,  3.) 

[Note. The  various  classes  of  challenges  recognized  at  common  law  have 

been  practically  reduced  In  courts-martial  practice  to  two,  viz,  (1)  principal 
challenges  or  those  where  the  member  must  be  excused  upon  proof  of  the 
ground  tor  challenges  as  alleged;  (2)  for  favor,  where  the  court  must  decide 
whether  the  facts  proved  constitute  cause  to  excuse  the  member.] 

121.  Grounds  for  challenge— (a)  Principal  challenges.— In  the  follow- 
ing cases  a  member  will  be  excused  when  challenged  upon  proof  of 
the  fact  as  alleged: 

(1)  That  he  sat  as  a  member  of  a  court  of  inquiry  which  investi- 
gated the  charges. 

( 2  )  That  he  has  personally  investigated  the  charges  and  expressed 
an  opinion  thereon,  or  that  he  has  formed  a  positive  and  definite 
opinion  as  to  the  guilt  or  innocence  of  the  accused. 

(  3 )   That  he  is  the  accuser. 

i  I  )   That  he  will  be  a  witness  for  the  prosecution. 

( :>)   That  (upon  a  rehearing  of  the  case)  he  sat  as  a  member  on  the 

former  trial. 

(G)  That,  in  the  case  of  the  trial  of  an  officer,  the  member  will  be 
promoted  by  the  dismissal  of  the  accused. 

|  7  i    That  he  is  related  by  blood  or  marriage  to  the  accused. 

(8)   That  he  has  a  declared  enmity  against  the  accused. 

(b)  Challenges  for  favor. — Where  prejudice,  hostility,  bias,  or  inti- 
mate personal  friendship  are  alleged  it  is  for  the  court,  after  hearing 
the  grounds  for  challenging  stated  and  the  reply,  if  any,  of  the  chal- 
lenged  member,  as  well  as  any  other  evidence  presented,  to  determine 
whether  the  grounds  stated  and  proved  or  admitted  are  sufficient  in 
fact  to  disqualify  a  challenged  member. 

122.  Challenge  of  new  member. — Where  new  members  join  or  are 
added  to  the  court  after  its  organization  the  order  detailing  such  new 
members  should  be  read  to  the  accused  and  he  should  be  given  full 
opportunity  to  challenge.  The  record  will  show  affirmatively  that  the 
right  has  been  accorded  the  accused  to  challenge  every  member  of  the 
court. 


COURTS-MARTIAL ORGANIZATION.  59 

123.  Challenge  by  judge  advocate. — There  is  no  statutory  authority 
for  a  challenge  by  the  judge  advocate,  bat  under  the  custom  of  the 
service  after  the  accused  has  fully  exercised  his  right  of  challenge 
the  judge  advocate  may  also  challenge  for  cause  in  the  same  manner 
as  the  accused.     (Digest,  p.  502,  IV,  O.) 

124.  Member  can  not  challenge. — There  is  no  authority  of  law  or  cus- 
tom of  the  service  for  a  member  of  a  court-martial  to  challenge 
another  member,  but  where  one  member  has  knowledge  of  the  fact 
that  another  is  the  accuser  in  the  case  or  will  be  a  witness  for  the 
prosecution  he  will  bring  the  fact  to  the  attention  of  the  court  in 
order  that  proper  action  may  be  taken.     (See  par.  129,  below.) 

125.  Procedure  upon  challenges. — A  positive  declaration  by  a  member 
challenged  on  the  ground  of  prejudice  or  interest  that  he  is  not 
prejudiced  against  the  accused  nor  interested  in  the  case  is  ordi- 
narily satisfactory  to  the  accused,  and,  in  the  absence  of  material 
evidence  in  support  of  the  objection,  will  justify  the  court  in  over- 
ruling it.  If,  however,  the  statement  is  unsatisfactory,  or  the  mem- 
ber makes  no  response,  the  accused  may  offer  testimony  in  support 
of  his  challenge  or  may  subject  the  challenged  member  to  an  exami- 
nation under  oath  as  to  his  competency  as  a  member.  In  such  a  case 
the  judge  advocate  administers  the  oath  to  the  challenged  member. 
The  accused  and  other  witnesses  may  be  cross-examined,  witnesses 
may  be  introduced  in  rebuttal  by  the  judge  advocate  and  arguments 
may  be  made.  The  whole  proceedings,  will,  in  the  case  of  a  general 
court-martial,  appear  in  the  record.  During  the  deliberation  of  the 
court  the  challenged  member  will  withdraw.  If  but  four  mem- 
bers remain  they  may  pass  upon  the  challenge.    ( See  Chap.  II,  Sec.  II. ) 

[Note. — For  form  of  oath  to  be  administered  to  a  challenged  member  see 
par.  137.] 

126.  Member  disqualified  but  not  challenged. — In  the  absence  of  a  chal- 
lenge the  court  of  itself  can  not  excuse  a  member  from  sitting  on 
the  trial  of  a  case,  but  a  member  not  challenged,  who  thinks  himself 
disqualified  for  reasons  other  than  those  indicated  in  paragraph  1 29, 
below,  may  announce  in  open  court  his  supposed  disqualification,  in 
order  that  he  may  be  challenged;  or  he  may  apply  to  the  appoint- 
ing authority  to  be  relieved. 

127.  Waiver  of  objection. — The  rule  is  that  challenges  should  be  made 
before  the  arraignment,  and  if  an  objection  to  the  comptency  of  a 
member  was  known  at  that  time  and  not  made,  it  will  be  considered 
as  waived;  but  if  the  cause  of  a  member's  incompetency  was  net 
known  at  the  time  of  arraignment  or  did  not  arise  until  later, 
court  will  entertain  a  challenge  based  on  such  cause,  at  any  stage 
of  the  proceedings. 

128.  Liberality  required.— Courts  should  be  Liberal  in  passing  upon 
challenges,  but  they  will  not  entertain  an  objection  that  is  not  spe- 


60  MANUAL  FOR  OOTTETB  MABTIAL. 

cific,  and  they  should  be  reluctant   to  sustain  one  upon  the  mere 
ikhi  (it*  the  accused,  except   where  it  is  admitted  1>\   the  chal- 
:  member. 

129.  Member  as  accuser  or  witness  for  the  prosecution. — No  officer  shall 
be  eligible  to  sit  as  a  member  of  a  general  or  special  court-martial 
when  he  is  the  accuser  or  a  witness   for  the  prosecution.     (A.  W. 

I  A.fter  the  accused  is  brought  before  the  court,  preferably 
before  the  court  is  -worn,  any  member  thereof  who  is  or  believes 
himself  to  be  the  accuser  in  the  case  will  formally  announce  that 
fact  t->  the  court,  whereupon  he  will  be  excused.  When  the  accused, 
his  counsel,  the  judge  advocate,  or  any  member  of  the  court,  at  any 
time  before  the  finding,  shall  have  reason  to  believe  that  any  member 
thereof  is  the  accuser  in  the  case,  or  may  be  called  as  a  witness  for 
the  prosecution,  such  belief  shall  be  communicated  to  the  court,  and, 
if  the  court,  after  hearing  the  facts,  find  that  such  member  is  the 
accuser  or  is  to  be  called  as  a  witness  for  the  prosecution,  he  shall 
be  excused.  If  at  any  stage  of  the  proceedings  prior  to  the  findings 
any  member  of  the  court  be  called  as  a  witness  for  the  prosecution, 
he  shall,  before  qualifying  as  a  witness,  be  excused  from  further 
duty  as  a  member. 

130.  Member  signing  charges — When  accuser.— Whether  or  not  an 
officer  is  the  accuser  in  a  particular  case  is  a  question  of  fact.  If. 
notwithstanding  his  ineligibility,  he  does  sit  as  a  member  of  a  gen- 
eral or  special  court-martial,  the  proceedings  are  uecessarily  invalid. 
(A.  W.  8,  9;  Op.  J.  A.  G.,  Oct.  11.  1913;  id..  Nov.  13,  1913,  Bull. 

War  Dept.,  L913,  p.  6.)  An  officer  may  he  ordered  by  superior 
authority  to  prefer  and  sign  ;.  charge.  The  action  of  the  officer 
preferring  and  signing  the  charge  may  be  purely  ministerial  and 
represent  no  conviction  whatever  on  his  part  that  an  offense  has  been 
committed,  or  that  if  an  offense  has  been  committed  it  was  committed 
by  the  person  charged.  In  such  a  case  the  accuser  is  not,  in  fact,  the 
officer  signing  the  charge,  but  the  officer  who  directs  the  preparation 
and  signing  of  the  charge.  The  former  is,  therefore,  not  within  the 
prohibition  of  the  statute.  The  officer  who  has  signed  the  charge  in 
a  particular  case  is.  however,  prima  fa  iccuser  in  thai  case, 

and  therefore  ineligible  to  sit  as  a  member  of  the  trial  court.  (Op. 
J.A.G.,  Feb. 20,  L91  '.  Bull. 8, War  Dept.,  L91  t,p.6.)  If  in  such  a  case 
the  court  should  decide  that  he  is  eligible,  a!!  the  c  idence  upon  which 

the  COUrt  reached  its  decision  will,  in  the  case  of  a  <:  N  Vol  court- 
martial,  be  made  of  record,  and  in  the  case  of  a  si»'-/<i!  court-martial 
the  record  will  show  that  evidence  touching  the  eligibility  of  the 
officer  was  heard  by  the  court  and  the  finding  arrived  at  thereon. 

131.  Member  of  court  as  witness.  (-0  For  the  prosecution. — No 
officer  shall  be  eligible  to  sit  as  a  member  of  a  general  or  a  special 
court-martial   who  is  a  witness  for  the  prosecution.     (A.  \V.  8,  !); 


COURTS- MARTIAL — ORGANIZATION.  61 

Bull.  38,  War  Dept..  1013.  p.  G.)  In  any  case  where  the  proceedings 
of  a  court  are  invalidated  by  reason  of  the  failure  to  excuse  a  mem- 
ber who  is  the  accuser  or  a  witness  for  the  prosecution  a  new  trial 
may  be  ordered.     (Bull.  8,  War  Dept.,  1914,  p.  8.) 

(b)  For  the  defense. — The  fact  that  a  member  is  a  witness  for  the 
defense  will  not  necessarily  disqualify  him  to  sit  as  a  member  of  the 
court,  and  the  fact  that  such  a  "witness  sits  throughout  the  trial  as  a 
member  of  the  court  will  not  in  any  way  affect  the  validity  of  its 
proceedings. 

(c)  When  called  by  court. — Whether  a  member  called  as  a  witness 
by  the  court  is  to  he  considered  as  a  witness  for  the  prosecution  de- 
pends on  the  character  of  his  testimony,  which  should  be  carefully 
considered  before  a  conclusion  is  reached  that  he  is  not.  In  any  case 
of  doubt  he  should  be  excused  from  further  participation  in  the  trial 
as  a  member.     (Op.  J.  A.  G.,  Nov.  20.  1913.) 

(d)  When  accused  pleads  guilty. — When  a  member  is  a  witness  to 
any  charge  or  specification  to  which  the  accused  pleads  guilty  and 
he  is  not  called  as  a  witness  for  the  prosecution  to  any  other  charge 
or  specification,  he  is  not  disqualified  from  sitting  as  a  member.  (Op. 
J.  A.  G.,  Nov.  19, 1914,  Bull.  52,  War  Dept.,  1914,  p.  3.) 

Section  II. 

OATHS. 

132.  Oath  of  members. —  (a)  The  challenges  having  been  disposed  of, 
the  judge  advocate  of  a  general  or  special  court-martial  shall  ad- 
minister to  the  members  of  the  court,  before  they  proceed  upon  any 
trial,  the  following  oath  or  affirmation  (A.  W.  19)  : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  try  and 
determine,  according  to  the  evidence,  the  matter  now  before  you,  between 
the  United  States  of  America  and  the  person  to  be  tried,  and  that  you  will 
duly  administer  justice,  without  partiality,  favor,  or  affection,  according  to 
the  provisions  of  the  rules  and  articles  for  the  government  of  the  Armies 
of  the  United  States,  and  if  any  doubt  should  arise,  not  explained  by  said 
articles,  then  according  to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases;  and  you  do  further  swear  (or  affirm) 
that  you  will  not  divulge  the  findings  or  sentence  of  the  court  until  they 
shall  be  published  by  the  proper  authority,  except  to  the  judge  advocate  and 
assistant  judge  advocate;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial,  unless  required  to 
give  evidence  thereof  as  a  witness  by  a  court  of  justice  in  due  course  of 
law.     So  help  you  God. 

(b)  Tn  case  of  affirmation  the  closing  sentence  of  adjuration  will 
!          itted. 

(c)  When  more  than  <>'u>  case  is  tried  by  tin1  same  court,  the  oath 
mus1  he  administered  anew  Poi  each  case. 


62  MAXl'AL   FOR    COUirrS-MAP.TIAL. 

(d)  The  oaths  or  affirmations  prescribed  in  A.  W.  19  for  the 
members,  the  judge  advocate,  a  witness,  and  others  will  always  be 
administere  i.  but  in  addition  there  may  be  such  additional  ceremony 
or  acts  as  will  make  the  oath  or  affirmation  binding  on  the  conscience 
of  the  person  taking  it. 

(e)  For  decorum  to  be  observed  during  the  administration  of 
oaths,  see  Chapter  VII,  Section  I. 

133.  Oath  of  judge  advocate.— When  the  oath  or  affirmation  has  been 
administered  to  the  members  of  a  general  or  special  court-martial, 
the  president  of  the  court  shall  administer  to  the  judge  advocate 
and  to  each  assistant  judge  advocate,  if  any,  an  oath  or  affirmation 
in  the  following  form  (A.  W.  19)  : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  not  divulge  the  findings  or 
sentence  of  the  court  to  any  but  the  proper  authority  until  they  shall  be 
duly  disclosed  by  the  same.     So  help  you  God. 

134.  Oath  of  witness.— (a)  All  persons  who  give  evidence  before  a 
court-martial  shall  be  examined  on  oath  or  affirmation  in  the  follow- 
ing form  (A.  W.  19),  administered  by  the  judge  advocate: 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  in  the  case  now  in 
hearing  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
help  you  God. 

(b)  If  either  the  judge  advocate  or  assistant  judge  advocate  is  to 
testify,  the  oath  or  affirmation  will  be  administered  by  the  other  or 
by  the  president. 

135.  Oath  of  reporter. —  (a)  Every  reporter  of  the  proceedings  of  a 
court-martial  shall,  before  entering  upon  his  duties,  make  oath  or 
affirmation  in  the  following  form  (A.  W.  19),  administered  by  the 
judge  advocate: 

You  swear  (or  affirm)  that  you  will  faithfully  perform  the  duties  of  reporter 
to  this  court.     So  help  you  God. 

(b)  For  authority  for  hiring  reporters,  and  compensation,  see 
Chapter  VII,  Section  V. 

136.  Oath  of  interpreter. — Every  interpreter  in  the  trial  of  any  case 
before  a  court-martial  shall,  before  entering  upon  his  duties,  make 
oath  or  affirmation  in  the  following  form  (A.  W.  19),  administered 
by  the  judge  advocate : 

You  swear  (or  affirm)  that  you  will  truly  interpret  in  the  case  now  in 
hearing.     So  help  you  God. 

137.  Oath  to  test  competency.— When  a  member  of  a  general  or  special 
court-martial  is  challenged  and  it  is  desired  to  question  him  regard- 
ing his  eligibility  to  sit  as  a  member  in  the  trial  of  a  case,  the  judge 
advocate  will  administer  to  him  the  following  oath: 

You  swear  that  you  will  true  answers  make  to  questions  touching  your 
competency  as  a  member  of  the  court  in  this  case.     So  help  you  God. 


COURTS-MARTIAL ORGANIZATION.  63 

138.  Oaths  for  administrative  purposes. —  (a)  Any  officer  or  clerk  of 
any  of  the  departments  lawfully  detailed  to  investigate  frauds  on, 
or  attempts  to  defraud,  the  Government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and  any  officer 
of  the  Army,  Navy,  Marine  Corps,  or  Revenue-Cutter  Service  de- 
tailed to  conduct  an  investigation,  and  the  recorder,  and  if  there  be 
none  the  presiding  officer,  of  any  military,  naval,  or  Revenue-Cutter 
Service  board  appointed  for  such  purpose,  shall  have  authority  to 
administer  an  oath  to  any  witness  attending  to  testify  or  depose  in 
the  course  of  such  investigation.  (R.  S.  1S3,  as  amended  by  the 
act  of  Feb.  13,  1911,  36  Stat.,  898.) 

(b)  Any  judge  advocate  or  acting  judge  advocate,  the  president 
of  a  general  or  special  court-martial,  any  summary  court-martial,  the 
judge  advocate  or  any  assistant  judge  advocate  of  a  general  or  spe- 
cial court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry 
or  of  a  military  board,  any  officer  designated  to  take  a  deposition,  any 
officer  detailed  to  conduct  an  investigation,  and  the  adjutant  of  any 
command  shall  have  power  to  administer  oaths  for  the  purposes  of 
the  administration  of  military  justice  and  for  other  purposes  of  mili- 
tary administration;  and  in  foreign  places  where  the  Army  may  be 
serving  shall  have  the  general  powers  of  a  notary  public  or  of  a 
consul  of  the  United  States  in  the  administration  of  oaths,  the  execu- 
tion and  acknowledgment  of  legal  instruments,  the  attestation  of 
documents,  and  all  other  forms  of  notarial  acts  to  be  executed  by 
person.s  subject  to  military  law.     (A.  W.  111.) 

Section  III. 

CONTINUANCES. 

139.  Authority  for. — A  court-martial  may,  for  reasonable  cause,  grant 
a  continuance  to  either  party  for  such  time  and  as  often  as  may 
appear  to  be  just.  (A.  W.  20.)  If  before  the  first  meeting  of  the 
court  a  continuance  is  deemed  necessary  by  either  party,  application 
therefor  should  be  made  to  the  appointing  authority,  but  if  made 
after  assembling  the  application  will  be  made  to  the  court.  When 
application  is  made  to  the  court  for  an  extended  delay  which  appears 
to  be  well  founded,  it  may  be  referred  to  the  appointing  authority 
in  order  that  he  may  determine  whether  the  court  should  grant  it 
or  whether  he  should  dissolve  the  court. 

140.  Reason  for  application  to  be  stated. — The  party  desiring  a  con 
tinuance  must  state  the  reasons  upon  which  his  application  is  ba 
When  it  is  desired  because  of  the  absence  of  a  wil 
tinctly  show  that  the  witness  is  material,  that  he  has  used  due  dili- 
gence to  procure  the  testimony  or  attendance  of  the  witness,  and  thai 
he  has  reasonable  ground  to  believe  that  he  will  he  able  to  pr< 


£4  •   COURTS  M.J.i  I 

dance  within  a  reasonable  time,  which  time 

shall  be  stated. 

141.  Number  of  continuances.— Tl te  number  of  continuances  which 
may  be  granted  is  no1  Limited,  but  where  extended  delays  will  ensue 
the  court  will  be  justified  in  exacting  proof  of  due  diligence  on  the 

of  the  party  requesting  the  same,  and  may  even  require  the  rea- 
ider  oath  if  it  has  reason  to  suspect  that  the  in- 
tention is  merely  to  delay  the  proceedings. 

Section  IV. 

COMPLETION  OF  ORGANIZATION. 

142.  When  accomplished. — The  court  hu\  ing  met,  the  accused  and  his 
counsel  having  been  introduced,  the  reportei  sworn,  the  convening 
order  read,  the  right  of  challenge  accorded,  and  the  court  ar-d  judge 
advocate  sworn,  the  organization  of  the  court  is  complete  for  the 
trial  of  the  case. 


CHAPTER  IX. 
COURTS-MARTIAL— PROCEDURE  DURING  TRIAL. 


rage. 

Section  I:  Arraignment 65 

143.  When  made 65 

144.  Procedure 66 

Section  1 1 :  Pleas 66 

145.  Kinds  of  pica-' 66 

Lction;  (b)  in  abatement;  (c)  in  bar  of  trial;  (d)  to 

the  general  issue C6 

146.  Plea  to  the  jurisdiction 66 

Grounds  for,  enumerated,  (a)  to  (d) 66 

147.  Pica  in  abatement 67 

148.  Pica  in  bar  of  trial 67 

149.  Statute  of  limitations 67 

1 .  Definition 67 

2.  I. imitations  as  to  time,  (a)  to  (d) 67 

3.  Limitation  a>  to  number  of  trials,  (a)  to  (h) 68 

150.  Pardon "0 

i  ondonation 70 

Lai  pleas 70 

(a)  Former  punishment 70 

(b)  Illegal  enlistment 70 

(c)  Release  from  arrest 70 

(J)  Other  forms  of  inadmissible  pleas 71 

1  pleas 71 

Procedure,  (a)  to  (d) 71 

154 .  Plea3  to  the  general  issue 72 

Di      -      ■!.  (a)to(<7) 72 

:  a!  to  plead 73 

Action » 73 

ii  IV:  Motions 74 

156.  Motion  to  sever : 74 

157.  Motion  to  elect 74 

74 


Section  I. 

ARRAIGNMENT. 

143.  When  made. — On  the  shearing  in  of  the  members  and  the  judge 
•ion  of  the  court  is  complete  for  the  trial  of 
n  before  the  court.    In  each  case  ti 
ointing  order  must  be  read  anew,  a  new  opportunity 


66 


66  MANUAL   FOR   COURTS-MARTIAL. 

to  challei  be  given,  and  the  members,  judge  advocate,  re- 

porter, and  interpreter  must  be  sw<  in  anew.    In  each  case  the  pro- 
la-  complete  \\  ithout  reference  to  any  other  case. 

144.  Procedure. — The  court  being  organized,  and  both  parties  ready  to 

idvocate  will  read  tl  and  specifications, 

lately  ;nul  in  order,  to  the  accused  and  ask  him  how  he  pleads 

to  each.  The  older  pursued,  in  case  of  several  charges  or  specifica- 
tions, will  be  to  arraign  on  the  first,  second,  etc,  specif  to  the 
first  charge,  th<  n  on  the  first  charge,  and  so  on  with  the  rest.  The 
reading  of  the  charges  and  specifications  and  the  pleas  of  the  accused 
in  answer  thereto  constitute  the  arraignment  of  the  accused.  In 
Lng  the  charges  the  judge  advocate  will  also  read  the  name  and 
rank  of  the  officer  preferring  them. 

[For  decorum  to  be  observed  daring  the  arraignment  see  par.  S6.] 

Section  II. 
PLEAS. 

145.  Kinds  of  pleas. — In  court-martial  procedure  the  usual  pleas  are 
the  following:  (a)  Pleas  to  the  jurisdiction;  (b)  pleas  in  abate- 
ment; (c)  pleas  in  bar  of  trial;  and  (d)  pleas  to  the  general  issue. 
The  first  three  mentioned  are  also  known  as  special  pleas.  These 
pleas  should  be  made  in  the  order  named.  (Dudley,  p.  93;  Bouvier's 
Law  Dictionary,  Rawle,  3d  Eev.,  p.  2G03.) 

146.  Plea  to  the  jurisdiction. — A  plea  to  the  jurisdiction  denies  tha 
right  of  the  court  to  try  the  case.  The  following  are  grounds  for  a 
plea  to  the  jurisdiction  of  a  court: 

(a)  That  it  was  appointed  by  an  officer  who  did  not  have  the  legal 
authority  to  do  so  (see  Chap.  Ill,  Courts-martial — By  whom  ap- 
pointed) : 

(b)  That  it  is  composed  wholly  or  in  part  of  members  not  author- 
ized by  law  to  sit  upon  such  court-martial  (see  Chap.  II,  Courts- 
martial — Composition)  ; 

(c)  That  the  accused  is  not  subject  to  its  jurisdiction  (see  Chap. 
1 .         sons  subject  to  military  law)  ;  or 

('/)  That  it  has  not  legal  power  to  try  the  oiTense  charged  (see 
Chap.  XVII,  Punitive  articles). 

-V  plea  to  the  jurisdiction,  if  well  grounded  and  sustained,  by  the 
coin-,.  cution  before  the  court.     If  well  grounded 

and  not  sustained  by  tie'  court,  the  proceedings  may  be  disapproved 
by   the  appointing  authority,  or,  even  though   approved,   ma 
reviewed  <>n  writ  of  habeas  corpus  by  a  United  States  court,  which 
will  cause  the  proceedings  to  be  set  aside  as  illegal  and  void.     Waiver 
of  objection  will  never  avail  to'confer  jurisdiction  upon  a  court  not 


COURTS-MARTIAL PROCEDURE   DURING   TRIAL.  67 

legally  possessing  it,  even  though  the  accused  fails  to  submit  a  plea 
to  the  jurisdiction  at  the  proper  time. 

147.  Plea  in  abatement. — A  plea  in  abatement  is  based  upon  some 
defect  in  the  charge  or  specification  and  is  one  that  operates  merely 
to  delay  the  trial,  such  as  an  error  in  the  name,  rank,  or  organization 
of  the  accused  or  in  the  allegation  as  to  time  and  place  in  the  specifi- 
cation. An  accused  who  submits  a  plea  in  abatement  must  show 
how  the  error  may  be  amended.  When  a  plea  in  abatment  is 
sustained,  the  judge  advocate  will  correct  the  charge  and  specifica- 
tion objected  to  so  as  to  meet  the  objection,  and  the  trial  will  proceed 
on  the  corrected  charges.  To  enable  him  to  make  the  correction  a 
continuance  may  be  granted.  Matters  which  might  have  been  ob- 
jected to  by  a  plea  in  abatement  will  be  considered  as  waived  by 
pleading  to  the  general  issue. 

148.  Plea  in  bar  of  trial. — A  plea  in  bar  of  trial,  if  sustained,  is  a  sub- 
stantial and  conclusive  answer  to  the  charge  or  specification  to  which 
it  is  addressed.  Such  a  plea  may  be  made  on  the  grounds  set  forth  in 
pars.  149, 150,  and  151. 

149.  The  statute  of  limitations. — (1)  Definition. — Statutes  of  limita 
tion  in  criminal  law  are  statutes  of  which  the  accused  may  take 
advantage  and  deprive  the  Government  of  the  power  to  try  and 
punish  him  after  the  lapse  of  a  specific  period  since  the  offense  was 
committed.  They  are  enacted  to  secure  the  prompt  punishment  of 
criminal  offenses  and  with  a  view  to  obtain  the  attendance  of  the 
witnesses  at  the  trial  while  the  recollection  of  the  event  is  still  fresh 
in  their  minds.  In  court-martial  practice  prosecutions  are  limited 
both  as  to  time  and  as  to  number.     (A.  W.  39,  40.) 

(2)  Limitations  as  to  time. — (a)  In  the  following  cases  there  is  no 
limitation  as  to  time  upon  trial  by  court-martial  (A.  W.  39)  viz: 

(1)  Desertion  committed  in  time  of  war; 

(2)  Mutiny;  or 

(3)  Murder. 

(b)  The  period  of  limitation  upon  trial  and  punishment  by  court- 
martial  shall  be  three  (3)  years  in  the  following  cases  (A.  W.  39) 
viz.  : 

(1)  Desertion  in  time  of  peace; 

(2)  Any  crime  or  oll'ense  punishable  under  A.  W.  93;  or 

(3)  Any  crime  or  offense  punishable  under  A.  W.  94. 

(c)  No  person  subject  to  military  law  shall  be  liable  to  be  tried 
or  punished  by  a  court-martial  for  any  crime  or  offense  not  enumer- 
ated in  paragraph  (a)  or  paragraph  (5),  supra,  committed  more  thai 

W8  before  the  arraignna  at  of  such  person  (A.  W.  39). 

(d)  (  :>>n  of  the  period  of  limitation. — The  point  at  and 
from  which  the  period  of  limitation  is  to  begin  to  run  is  the  date  o£ 


68  MANUAL  FOB  I  \'.. 

the  commissi*  n  of  the  offense.  The  point  at  which  the  period  of  limi- 
tation is  to  terminate  and  from  which  said  period  is  to  be  reckoned 
back  is  the  date  of  arraignment  of  the  accused.  There  must  be  ex- 
cluded in  computing  this  period — 

(1)  Tin  f  any  absence  of  the  accused  from  the  jurisdiction 
of  the  United  States;  and 

(2)  Any  period  during  which  by  reason  of  some  manifest  impedi- 
ment the  ac<  used  shall  not  have  been  amenable  to  military  justice. 

[Notes. — "Manifest  Impediment"  means  only  such  Impediments  as  operate  to 
M  the  court  rom  exercising  its  jurisdiction,  and  J  h  con- 

ditio) held  as  u  prisoner  of  war  in  the  bands  of  the  enemy,  or  being 

lmprls  r  the  sentence  of  a  civil  court  upon  conviction  I  [n  re 

Davison,  4  Fed.  Rep.,  510)  ;  but  any  eon  C  the  evidence  of  their  guilt 

or  other  like  fraud  <>n  their  part  while  they  remain  within  the  jurisdiction  of  the 
!  i  States,  by  which  the  prosecution  is  delayed  until  the  time  the  bar  lias 

run.  did  uo1  d<  prive  them  of  the  benefit  of  the  statute.    (14  Op.  Any.  Gen.,  268.) 
i  thirty-ninth  article  o£  war  did  not  hav<  I  to  authorize  trial  or 

i  any  crime  or  offense  barred  by  the  provisions  of  law  existing  at 
the  date  of  its  enactment,  August  29,  191C] 

(3)  Limitation  as  to  number  of  trials. —  (a)  Xo  person  shall  be 
tried  a  second  time  for  the  same  offense.     (A.  W.  40.) 

(I)  Where  a  person  subject  to  military  law  has  been  once  <luly 
convicted  or  acquitted  by  a  court-martial  he  has  been  "tried"  in  the 
the  article,  and  can  not  be  tried  again,  against  his  will,  for 
the  same  offense,  or  for  any  included  offense  and  it  is  immaterial 
whether  the  conviction  or  acquittal  has  been  approved  or  disap- 
proved. 

(c)  A  person  subject  to  military  law  has  not  been  '"tried"'  in  the 
tense  of  A.  W.  40  in  any  of  the  following  cas 

Where  the  party,  after  being  arraigned  or  tried  before  a  court 
which  was  illegally  constituted  or  composed,  or  was  without  jurisdic- 
tion, was  again  brought  to  trial  before  a  competent  tribunal;  where 
the  accused,  having  been  arraigned  upon  and  having  pleaded  to  cer- 
tain charges,  was  rearraigned  upon  a  new  set  of  charges  substituted 
for  the  others  which  were  withdrawn:  where  one  of  the  several  dis- 
tinct charges  upon  which,  the  accused  had  been  arraigned  was  with- 
drawn pending  the  trial,  and  the  accused,  after  a  trial  and  finding  by 
the  court  upon  the  other  charges,  was  brought  to  trial  anew  upon 
the  charge  thus  withdrawn;  where,  after  proceedings  commenced, 
but  discontinued  without  a  finding,  the  accused  was  brought  to  trial 
anew  upon  the  same  charge:  where,  after  Inning  been  acquitted  or 
convicted  upon  a  certain  charge  which  did  not  in  fact  state  the  real 
mmitted,  the  accused  was  brought  to  trial  for  the  same  act, 
but  upon  a  charge  setting  forth  the  true  offense;  where  the  court 
worn;  where  the  first,  court  was  dissolved  because  reduced 
below  five  members  by  the  casualties  of  the  service  pending  the  trial ; 
where,  for  any  cause,  without  fault  of  the  prosecution,  there  was  a 


COURTS-MARTIAL PROCEDURE   DURING   TRIAL.  69 

"mistrial,''  or  the  trial  first  entered  upon  was  terminated,  or  the 
court  dissolved,  at  any  stage  of  the  proceedings  before  a  final  ac- 
quittal or  conviction.     (Digest,  p.  167,  C,  II,  13.) 

(d)  The  same  acts  constituting  a  crime  against  the  United  States 
can  not,  alter  the  acquittal  or  conviction  of  the  accused  in  a  court 
of  competent  jurisdiction,  be  made  the  basis  of  a  second  trial  of  the 
accused  for  that  crime  in  the  same  or  in  another  court,  civil  or  mili- 
tary, of  the  same  government. 

Although  the  same  act  when  committed  in  a  State  might  constitute 
two  distinct  offenses,  one  against  the  United  States  and  the  other 
against  the  State,  for  both  of  which  the  accused  might  be  tried,  that 
rule  does  not  apply  to  acts  committed  in  the  Philippine  Islands.  The 
government  of  a  State  does  not  derive  its  powers  from  the.  United 
States,  while  that  of  the  Philippine  Islands  does  owe  its  existence 
wholly  to  the  United  States. 

A  soldier  in  the  Army,  having  been  acquitted  of  the  crime  of 
homicide,  alleged  to  have  been  committed  by  him  in  the  Philippine 
Islands,  by  a  military  court-martial  of  competent  jurisdiction  pro- 
ling  under  authority  of  the  United  States,  can  not  be  siibsc- 
tly  tried  for  the  same  offense  in  a  civil  court  exercising  authority 
in  that  Territory.     (Grafton  v.  U.  S.,  20G  U.  S..  333.) 

A  similar  rule  applies  in  Alaska,  Hawaii.  Porto  Pico.  The  Panama 
Canal  Zone,  or  any  other  locality  where  the  civil  courts  derive  their 
authority  from  the  United  States. 

(e)  There  can  not  be  a  second  trial  where  the  offense  is  really  the 
same  though  it  may  bo  charged  under  a  different  description  and 
under  a  different  article  of  war.  Thus,  where  the  Government  elects 
to  try  a  soldier  under  A.  W.  01  for  absence  without  leave,  and  the 

imony  introduced  develops  the  fact  that  the  offense  was  desertion, 
the  accused,  after  an  acquittal  or  conviction,  can  not  legally  be 
brought  a  second  time  to  trial  for  the  same  absence  charged  as  de- 
sertion.    (Digest,  p.  169,  C,  II,  D.) 

(/)  It  is  not  misrepresentation  or  concealment  by  an  applicant 
for  enlistment,  but  the  procuring  of  his  enlistment  by  means  of 
misrepresentation  or  concealment,  together  with  the  receipt  of  pay 
or  allowances,  which  constitutes  the  military  offense  of  fraudulent 
enlistment  under  A.  W.  -VI.  Therefore,  where  a  soldier  was  tried 
for  and  convicted  of  fraudulent  enlistment  in  procuring  his  enlist- 
ment by  means  of  a  misrepresentation  or  concealment,  to  try  him 
again  for  the  same  enlistment  on  account  of  another  misrepresenta- 
tion or  concealment  subsequently  i  I  would  be  a  second  trial 
for  the  same  offense.     I  Digest,  p.  L69,  C.  IT.  E,  1.) 

(g)  The  thirty-ninth  article  of  war  does  not  deprive  a  court- 
martial  of  jurisdiction  of  an  offense  after  the  peri<  ribedi 
The  court  still  has  jurisdiction.    The  article                          ed  a  right 


70  MANUAL   FOR  COURTS-MARTIAL. 

of  exemption  from  trial     if  the  accused  claims  ption  and 

.  In  other  words,  the  exemptioD  from  trial  is  a  defense 
thai  the  accused  must  assert  in  order  to  take  advantage  <>f  it.  The 
defense  may  be  made  by  entering  a  plea  in  bar,  or  it  may  be  made 
after  a  plea  of  not  guilty  by  introducing  evidence  showing  the  facta 
that  entitle  him  to  the  exemption. 

(h)  In  each  case  tried  by  general  court-martial  in  which,  upon  the 
face  of  the  record,  it  appears  that  the  accused  might  successfully 
plead  the  statute  of  limitations  but  in  which  he  has  not  interposed 
such  plea,  it  shall  bfl  made  to  appear  of  record  that  the  president  of 
the  court  advised  the  accused  of  his  legal  rights  in  the  premises. 

150.  Pardon. — A  pardon  is  an  act  of  the  President  which  exempts 
the  individual  on  whom  it  is  bestowed  from  the  punishment  the  law 
inflicts  for  a  crime  he  has  committed.     (See  Words  and  Phi; 
vol.  6,  p.  5168,  and  authorities  there  cited.) 

151.  Constructive  condonation. — Where  a  deserter  has  been  restored  to 
duty  without  trial  by  authority  competent  to  order  his  trial,  this 
action  is  regarded  as  a  constructive  condonation  of  the  offense  and 
may  be  pleaded  in  bar  of  trial  subsequently  ordered.  (Digest,  p. 
839,  XV,  D,  4.) 

152.  Inadmissible  special  pleas — (a)  Former  punishment.— The  plea  of 
former  punishment,  i.  e.,  that  he  has  already  been  adequately  pun- 
ished for  his  offense  by  his  commanding  officer,  is  not  recognized  by 
our  military  law,  and,  when  made  in  our  military  trials,  has  been 
properly  overruled;  but  where  an  accused  has,  prior  to  trial,  been 
subjected,  on  account  of  his  offense,  to  any  physical  punishment,  or  to 
reduction  to  the  ranks,  or  to  protracted  arrest,  or  to  reprimand,  or 
other  unusual  or  unauthorized  discipline,  he  may  properly  show  the 
fact  in  evidence  on  the  general  issue  in  mitigation  of  such  sentence  as 
the  court,  in  the  event  of  his  conviction,  may  impose.  Except  in  this 
form,  he  can  not  avail  himself  of  such  circumstances  upon  his  trial. 
(Winthrop,  p.  411;  25  Op.  Atty.  Gen.,  623 ;  28  idem.,  G22.) 

(b)  Illegal  enlistment. — The  accused;  upon  arraignment,  has  some- 
times pleaded  that  on  account  of  some  illegality  in  his  enlistment,  as 
that  he  was  under  age,  or  that  he  was  enlisted  for  a  shorter  period 
than  the  law  required,  etc.,  he  was  not  amenable  to  trial.  But  no  such 
form  of  special  plea  is  recognized  in  our  law.  If  the  accused,  by 
reason  of  his  invalid  enlistment,  is  not  duly  or  legally  in  the  Army, 
he  should,  regularly,  offer  the  facts  in  evidence  under  a  plea  to  the 
jurisdiction,  or  bring  them  out  under  the  general  i.sstie.  (Winthrop, 
p.  411.) 

(c)  Release  from  arrest.— Release  from  arrest  upon  the  charges  and 
restoration  to  duty  before  trial— already  noticed  as  not  a  ground  for 
a  plea  of  pardon  or  condonation  (except  in  case  of  a  deserter  restored 


COURTS-MARTIAL — PROCEDURE   DURING   TRIAL.  71 

to  duty  without  trial) — is.  similarly,  no  ground  for  a  special  plea  in 
bar  of  trial.    (Idem,  p.  412.) 

(d)  Other  forms  of  inadmissible  pleas. — Such  objections  (which  have 
been  taken  in  some  cases)  as  that  the  accused,  at  the  time  of  the 
arraignment,  is  undergoing  a  sentence  of  general  court-martial,  or 
that,  owing  to  the  long  delay  in  bringing  him  to  trial,  lie  is  ''unable 
to  disprove  the  charge  or  defend  himself";  or  that  his  is  ac- 

tuated by  malice  or  is  a  person  of  bad  character — are,  it  need  hardly 
be  said,  not  proper  subjects  for  special  pleas,  however  much  they  may 
constitute  ground  for  continuance,  or  affect  the  question  of  the  meas- 
ure of  punishment.  So,  as  to  all  such  objections  as  are  properly  mat- 
ters of  defense  under  the  general  issue — for  example,  that  the  accused 
committed  the  offense  charged  when  insane,  or  intoxicated,  or  in 
obedience  to  a  military  order,  or  under  a  mistake  of  fact  or  law, 
etc._these  are  not  within  the  scope  or  purpose  of  special  pleas  in  bar, 
nor  can  they  properly  be  raised  in  an  interlocutory  form,  or  otherwise 
than  upon  the  trial  and  by  the  testimony,  being,  as  they  are,  of  the 
very  substance  of  the  defense.     (Idem.  p.  412.) 

153.  Action  upon  special  pleas. —  (a)  Each  special  plea  should  be 
stated  briefly  and  clearly.     It  must  also  be  supported  by  evidence 
or  legal  argument  to  show  that  it  is  well  taken.    The  burden  of  sup- 
porting a  special  plea  by  a  preponderance  of  proof  rests  on  the 
accused.    Both  sides  should  be  heard  and  the  proceedings  and  argu- 
ments under  the  plea  in  trial  by  general  or  special  court-martial 
led.    The  accused  may  make  several  special  pleas  to  any  charge 
■ifieation. 
(b)  When  a  special  plea  to  the  jurisdiction  or  in  bar  of  trial 
as  to  all  the  charges  and  specifications  has  been  sustained  by  a  court, 
the  record  of  the  proceedings  as  far  as  had  will  be  forwarded  to  the 
reviewing   authority   with   a   statement   of   reasons   which,   in   the 
opinion  of  the  court,  sustain  its  action.    If  the  reviewing  authority 
is  in  disagreement  with  the  court  in  respect  of  the  validity  of  the 
pie;',  the  proceedings  will  be  returned  by  him  to  the  court,  with 
reasons  for  such  disagreement  and  with  instructions  to  the  court 
to  reconvene  and  reconsider  its  action.     To  the  extent  that  such 
s  present  issues  of  law,  the  court  properly  defers  to  the  views 
of  tli«-  reviewing  authority.    The  order  returning  the  procedings  for 
ration    should   direct   the   court,   upon   vacating   its   prior 
act;  seed  with  the  trial  of  the  case.    If  the  reviewing  author- 

ity  approves  the   action  of  the   court   in  sustaining  such   pleas  his 
•i  will  be  indorsed  on  the  proceedings  and  published  in  the  final 
v  of  the  case. 
(■  )   It"  the  and  specification  to  which  a  special  plea  has 

I  arc  not  capable  of  amendment  and  there  are  other 
charges  and  specifications  in  the  case,  the  trial  may  proceed  on  the 
other  charges  and  specifications.     (G.  O.  28,  W.  D.,  1905.) 


72  MANUAL  FOB   COUETS-MABTIAL. 

When  all  th<  ;  leas  (<»  a  given  charge  or  specification 

are  overruled,  the  accused  must  plead  to  the  general  issue  as  to  that 
<  harge  or  specification. 

154.  Pleas  to  the  general  issue. —  (a)   Usually  the  plea  of  the  accused 

"not  guilty"  to  each  charge  and  specification :  or,  guilty 

to  a  specification  excepting  certain  words,  and  to  the  excepted  words 

guilty;  or,  as  when  charged  with  an  offense  which  includes  a 

•:  one  of  a  kindred  o  Ity  to  the  specificatii  cer- 

words,  substituting  therefor  certain  others,  to  the  excepted  words 

"  ii.it  guilty,"  to  the  substituted  words  "  guilty,"  and  to  tin'  charge  not 

guilty,  but  guilty  of  the  lesser  included  offense. 

(5)   A  court-martial  is  authorized,  in  any  case,  in  its  discretion, 
rmit  an  accused  to  withdraw  a  plea  of  not  guilty,  and  substi- 
tute one  of  guilty,  and  vice  versa,  or  to  withdraw  either  of  these 

a]  pleas  and  substitute  a  special  plea.  And  wherever  tli 
cused  applies  to  be  allowed  to  change  or  modify  his  plea,  the 
court  should,  in  general,  consent,  provided  the  application  is  made  in 
faith  and  not  for  the  purpose  of  delay. 
(/)  A  plea  of  guilty  does  not  necessarily  exclude  the  taking  of 
evidence,  on  behalf  of  either  the  accused  or  the  prosecution,  or  at  the 
request  of  the  court.  In  cases  where  tliv  punishment  is  discretionary 
a  full  knowdedge  of  the  circumstances  attending  the  offense  is  es- 
ial  to  the  court  in  measuring  the  punishment,  and  to  the  review- 
ing authority  in  acting  on  the  sentence.  In  cases  where  the  punish- 
ment is  mandatory^  a  full  knowledge  of  the  attendant  circumstances 
is  necessary  to  tin-  reviewing  authority  to  enable  him  to  comprehend 
the  entiie  case  and  correctly  judge  whether  the  sentence  should  be 
approved  or  disapproved  or  clemency  granted.  The  court  should 
therefore  take  evidence  after  a  plea  of  guilty,  except  when  the 
specification  is  so  descriptive  as  to  disclose  all  the  circumstances  of 
mitigation  or  aggravation.  When  evidence  is  taken  after  a  plea  of 
"guilty"',  the  witnesses  may  be  cross  examined,  evidence  may  be  pro- 
I  to  rebut  their  testimony,  and  the  court  may  be  addressed  by 
the  prosecution  or  defense  on  the  merits  of  the  evidence  and  in  ex- 
tenuation of  the  offense  or  in  mitigation  of  punishment.  After  a 
plea  of  guilty  the  accused  will  always  be  given  an  opportunity  to 
offer  evidence  in  mitigation  of  the  offense  charged  if  he  desires  to 
do  so. 

('/)  In  each  case  tried  by  a  general  court-martial  in  which  the 
accused  enters  a  plea  of  guilty  in  whole  or  in  part  as  to  any  charge 
or  specification  the  president  of  the  court  shall  explain  to  him  as  to 
thai  pari  : 

.  The  various  elements  which  constitute  the  offense  charged, 
i  forth  in  Chapter  XVII,  defining  the  punitive  articles  of  war; 
and 


COURTS-MARTIAL — PROCEDURE   DURING   TRIAL.  73 

Second.  The  maximum  punishment  which  may  be  adjudged  by  the 
court  for  the  offense  to  which  he  has  pleaded  guilty. 

The  accused  will  then  be  asked  whether  he  fully  understands  that 
by  pleading  guilty  to  such  a  charge  or  specification  he  admits  having 
committed  all  the  elements  of  the  crime  or  offense  charged  and  that  he 
may  be  punished  as  stated.  If  he  replies  in  the  affirmative,  the  plea  of 
guilty  will  stand ;  otherwise  a  plea  of  not  guilty  will  be  entered.  The 
explanation  of  the  president  and  the  reply  of  the  accused  thereto 
shall  appear  in  the  record.  The  same  rule  will  apply  in  cases  tried 
by  special  court-martial  when  the  evidence  heard  is  made  of  record. 

(e)  When  the  accused  pleads  "guilty,"  and,  without  any  evidence 
being  introduced,  makes  a  statement  inconsistent  with  his  plea,  the 
statement  and  plea  will  be  considered  together,  and  if  guilt  is  not 
conclusively  admitted  the  court  will  direct  the  entry  of  a  plea  of 
"  not  guilty  "  and  proceed  to  try  the  case  on  the  general  issue  thus 
made.  The  most  frequent  instances  of  inconsistency  are  in  cases 
involving  a  specific  intent,  as  in  desertion,  larceny,  etc.  In  such 
cases,  where  after  a  plea  of  guilty  the  accused  makes  a  statement, 
the  latter  should  be  carefully  scrutinized  by  the  court,  and  if  in 
the  case  of  desertion  in  any  part  there  is  a  statement  that  the  ac- 
cused had  no  intention  of  remaining  away,  that  he  expected  to  re- 
turn when  he  had  earned  some  money,  or  that  when  arrested  he  was 
on  his  way  back  to  his  organization,  etc.;  or,  in  the  case  of  larceny, 
that  he  intended  to  return  the  property  alleged  to  have  been  stolen, 
etc.,  the  court  should  direct  the  entry  of  a  plea  of  "  not  guilty,"  but 
the  criminality  of  an  intent  once  formed  is  not  affected  by  a  subse- 
quent change  of  intent. 

(/)  A  plea  of  "guilty  without  criminality"  is  irregular  and  con- 
tradictory. (Winthrop,  p.  414.)  It  is  practically  equivalent  to  a 
plea  of  "  not  guilty  "  and  the  court  and  judge  advocate  should  pro- 
ceed as  if  that  plea  were  entered.  Unless  a  plea  of  guilty  is  unquali- 
the  prosecution  must  prove  all  allegations  that  are  not  specifi- 
cally admitted  by  the  accused. 

(g)   Insanity  at  the  time  of  the  commission  of  the  acts  charged 

is  a  defense  which  may  be  properly  made  under  a  plea  of  not  guilty. 

Insanity  at  the  time  of  arraignment,  or  at  a  later  stage  of  the  trial, 

proper  ground  for  the  arrest  of  further  proceedings  on  the 

charges.     (See  par.  219.) 

Section  III.    ■ 

REFUSAL  TO  PLEAD. 

155.  Action. — When  the  accused,  arraigned  before  a  court-martial, 
from  obstinacy  and  deliberate  design  stands  mute  or  answers  for- 
eign to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as 
if  he  had  pleaded  not  guilty.  (A.  W.  21.)  If  the  court  finds  that 
the  failure  to  plead  is  the  result  of  insanity,  it  will  proceed  as  indi- 
cated in  Section  II,  paragraph  154  (g) ,  supra. 


74  MANUAL    FOB    COURTS-MARTIAL. 

noN  rv. 

MOTIONS. 

156.  Motion  to  sever. — A  motion  to  sever  la  a  motion  by  one  of  two 
or  more  ;'(  •!  to  be  tried  separately  from  the  other  or  othei  -. 
li   '.ill  regularly  be  made  ai  the  arraignment.     Except  where  the 

ice  of  the  charge  is  combination  between  the  parties  (as  in 
mutiny),  the  motion  may  properly  be  granted  for  good  cause  shown. 
The  more  common  grounds  of  motions  for  severance  are  that  the 
mover  desires  to  avail  himself  on  his  trial  of  the  testimony  of  one 
or  Hi  accused,  or  of  the  testimony  of  the  wife  of  one.  or 

that  the  defenses  of  the  other  accused  are  antagonistic  to  his  own.  or 
that  the  evidence  as  to  them  will  in  some  manner  prejudice  his 
defense.  This  motion  has  rarely  been  presented  to  the  court  in  our 
military  practice.  Where  the  prosecution  desires  to  use  one  of  two 
or  more  joint  accused  as  a  witness  against  another  or  others,  the 
practice  is  not  to  move  to  sever,  but.  by  order  of  the  convening 
authority,  to  withdraw  charges  as  to  such  one.     (See  Winthrop,  p. 

md  authorities  there  quoted.) 

157.  Motion  to  elect. — The  prosecution  is  at  liberty  to  charge  an  act 
under  two  or  more  forms,  where  it  is  doubtful  under  which  it  will 
more  properly  be  brought  by  the  testimony.  In  the  military  practice 
the  accused  is  not  entitled  to  call  upon  the  prosecution  to  "elect" 
under  which  charge  it  will  proceed  in  such,  or  indeed  in  any,  case> 
(Digest,  p.  504,  V,  F.) 

158.  Nolle  prosequi. — A  nolle  pros*  qui  is  a  declaration  of  record  on 
the  part  of  the  prosecution  that  it  withdraws  a  charge  or  specifica- 
tion from  the  investigation  and  will  not  pursue  the  same  furthei 
at  the  present  trial.  This  authority  can  only  be  exercised  by  the 
superior  who,  as  the  representative  of  the  United  States,  ordered  the 
court,  and  in  a  proper  case  he  may,  on  his  own  initiative  or  on  appli- 
cation duly  made  to  him,  instruct  the  judge  advocate  to  enter  a  nolle 

The  principal  grounds  for  this  proceeding  when  duly 
authorized  will  be — 

(a)  The  fact  that  the  charge  or  specification  is  discovered  to  be 
mtially  defective  and  insufficient  in  law,  or 

('V)    That  it  is  ascertained  that  the  allegations  can  not  be  proved,  or 

(c)  That  the  testimony  available  is  not  sufficient  to  sustain  them, 
or 

t<h  That  the  criminality  of  one  of  the  accused,  where  there  are 
several,  can  not  he  established,  or 

(e)  That  it  is  proposed  to  use  one  of  the  accused  as  a  witn<  ss. 

The  withdrawal  of  such  a  charge  or  ion  is  not  in  itself 

equivalent  to  an  acquittal  or  to  a  grant  of  pardon  ami  can  not  be  so 
pleaded.     It  simply   removes   from  the  pending  case  a  particular 


COURTS-MARTIAL PROCEDURE   DURING   TRIAL.  75 

charge  or  specification  without  prejudice  to  its  being  subsequently 

renewed  in  its  original  or  a  revised  form.  In  court-martial  practice 
when  authorized  b}^  the  appointing  authority  a  nolle  prosequi  may- 
be entered  either  before  or  after  arraignment  and  plea.  If  after  ar- 
raignment it  is  found  that  a  charge  or  specification  can  not  be  sus- 
tained or  it  is  determined  for  other  reasons  that  the  same  shall  not 
be  pursued,  while  it  would  be  legal  to  enter  a  nolle  prosequi  thereto, 
it  will  be  the  preferable  course,  as  well  as  most  just  to  the  accused, 
not  to  do  so,  but  to  allow  the  accused  to  be  formally  acquitted 
thereon  at  the  finding.     (See  Winthrop,  pp.  369-371.) 


CHAPTER  X. 
COURTS-MARTIAL— WITNESSES  AND  DEPOSITIONS, 


Section   T.  Attendance  of  witnesses:  Page. 

I  toccss  to  obtain  witnesses 78 

160.  Service  of  subpoena 78 

161.  Summoning  of  witnesses 78 

Advance  notice  to  witnesses 79 

163.  Attendance  of  military  witnesses 79 

1  (i4 .  Procedure  to  secure  attendance  of  civilian  witness 79 

165.  "When  accused  must  be  confronted  with  witness 80 

166.  Procedure  to  obtain  books,  documents,  or  papers 80 

167.  C  ivilian  witness  in  confinement 80 

168.  Warrant  of  attachment SO 

i  i  abeas  corpus  proceedings  in  connection  with  attachments 81 

170.  Punishment  for  refusal  to  appear  or  testify 82 

171.  Same  in  Philippine  Islands 83 

172.  Tender  of  fees  preliminary  to  prosecution 83 

•  ontempts 83 

(a)  Authority  to  punish 83 

(b)  Persons  who  may  be  punished  for  contempt "    84 

(c)  Direct  and  constructive  contempts 84 

(d)  Procedure 84 

o  II.  Depositions: 

174.  When  admissible 84 

175.  Before  whom  taken 85 

176.  Interrogatories,  how  submitted 85 

177.  Procedure  to  obtain  deposition 85 

Tracing  delayed  depositions 87 

179.  Designation  of  deponent  by  official  title 87 

180.  Deponent's  answers  to  be  responsive , 87 

181.  Fees  for  taking  depositions 87 

Taking  depositions  in  foreign  country 87 

ge,  and  expenses  of  witnesses: 

183.  Officers  and  soldiers,  active  or  retired 88 

184.  Civilians  in  Government  employ 88 

185.  Civilians  not  in  Government  employ 88 

i  'ayment  for  return  journey 89 

187.  <  mitents  of  vouchers t 89 

se  in  several  trials  on  same  day 89 

189.  Y<. ii'  her  to  be  delivered  to  witness 89 

190.  Lost  voucher 89 

ice  of  subpoenas 90 

192.  Employment  ofexperts 90 

193.  Expenses  of  courts-mat  tial,  hi  w  payable 90 

77 


"  S  MANUAL  FOR   COXJETS-MABTIAL. 

Section  I. 

ATTENDANCE  OF  WITNESSES. 

159.  Process  to  obtain  witnesses. — Every  judge  advocate  of  a  genera] 

•  vial  court-martial,  and  vwvy  summary  court-martial  shall  have 

power  to  issue  the  like  process  to  compel  witnesses  to  appear  and 

testify  which  courts  of  the  United  States,  having  criminal  jurisdic- 

.  may  lawfully  issue;  but  such  process  shall  run  to  any  part  of 
the  United  States,  its  Territories,  and  possessions.  (A.  TV.  2-2.)  The 
authority  to  issue  such  process  is  in  terms  vested  solely  in  the  judge 
ad\  ocate  of  a  general  or  special  court-martial  and  in  a  summary  court- 
martial,  and  it  is  by  them  alone  that  the  process  can  be  initiated.  The 
judge  advocate,  however,  will  sometimes  properly  consult  the  court 

i  the  desirability  of  resorting  to  an  attat  specially  where 

any  considerable  time  may  be  required  for  the  service  and  return  of 

the  same,  and  an  unusual  adjournment  may  thus  be  necessitated.     He 

will  also  properly  resort  to  it  whenever  the  court  in  its  desire  to 

■  th"  best  or  material  evidence  not  otherwise  procurable  calls 

upon  him  for  the  purpose.    (Winthrop,  p.  298.)     (C.  M.  C.  M.,  Xo.  1.) 

[Note. — 1.  For  power  to  issue  process  to  secure  the  attendance  and  testimony 
of  witnesses  before  courts-martial  In  the  National  Guard,  Dot  in  the  service  of 
th<  tJnited  States,  see  sec.  108,  act  of  June  3,  1916,  39  Stat.,  209,  Appendix  2. 
2.  Wherever  in  this  section  reference  is  made  t<>  Issue  of  such,  process  by  a  judge 
advocate,  a  summary  court-martial  will  be  understood  to  he  Included.] 

JP0.  Service  of  subpoena. — A  subpoena  for  the  attendance  of  a  civilian 
witness  is  issued  in  duplicate.  It  may  be  legally  served  by  either  a 
person  in  the  military  service  or  a  civilian.  Usually,  service  is  made 
by  an  officer  or  noncommissioned  officer.  Service  is  made  by  personal 
delivery  of  one  of  the  copies  to  the  witness.  The  proof  of  service  is 
made  by  indorsing  on  the  remaining  copy  a  sworn  statement  that 
service  was  made.  (For  service  by  mail  and  acceptance  of  same,  see 
par.  104,  below.)  After  making  service  a  copy  of  the  subpeena  will  be 
promptly  returned  to  the  judge  advocate  of  the  court,  with  the  proof 
of  service.  If  the  witness  can  not  be  found,  the  judge  advocate  should 
be  promptly  so  informed.  A  judge  advocate  can  not  subpoena  a 
civilian  witness  to  appear  before  himself  for  preliminary  examina- 
tion. 

—For  form  of  subpoena  and  proof  of  service,  see  Appendix  13.] 

161.  Summoning  of  witnesses. — The  judge  advocate  will  summon  the 
necessary  witnesses  for  the  trial,  but  will  not  summon  witnesses  at 
the  expense  of  the  ( rovernment  without  the  order  of  the  court,  unless 
Bed  that  their  testimony  is  material  and  necessary.  In  order  that 
I  may  no!  be  denied  a  full  opportunity  to  make  his  def< 
any  witness  requested  by  him  is  usually  summoned.  But  a  reason- 
able discretion  should  be  exercised  where  the  summoning  of  the  nim> 


COUETS-MAETIAL WITNESSES  AND   DEPOSITIONS.  79 

ber  of  witnesses  requested  by  the  defense  would  result  in  an  unreason- 
able inconvenience  or  expense  to  the  Government.  In  such  instances 
the  judge  advocate  should  ascertain  whether  the  testimony  required  of 
the  witness  is  not  merely  cumulative,  or  as  to  an  unimportant  point 
that  one  witness  would  be  sufficient  to  render  conclusive,  or  as  to 
which  the  judge  advocate  would  be  willing  to  admit  the  facts  ex- 
ported from  the  witness's  testimony. 

162.  Advance  notice  to  witnesses. — The  judge  advocate  will  endeavor 
to  issue  subpoenas  to  civilian  witnesses  and  to  make  request  for  the 
attendance  of  military  witnesses  at  such  time  as  will  give  each 
witness  at  least  24  hours'  notice  before  starting  to  attend  the  meeting 
of  the  court. 

163.  Attendance  of  military  witnesses. — The  attendance  of  persons  in 
the  military  service  stationed  at  the  place  of  meeting  of  the  court, 
or  so  near  that  no  expense  of  transportation  will  be  involved,  will 
ordinarily  be  obtained  by  informal  notice  served  by  the  judge  advo- 
cate on  the  person  concerned  that  his  attendance  as  a  witness  is 
desired.  If  for  any  reason  formal  notice  is  required,  the  judge 
advocate  will  request  the  proper  commanding  officer  to  order  him  to 
attend;  but,  if  mileage  is  involved,  the  department  commander  or 
other  proper  superior  will  be  requested  to  issue  the  necessary  order. 
Fees  will  not  be  paid  to  military  witnesses  on  the  active  list,  and  they 
are  entitled  only  to  the  mileage  allowances  due  them  under  their 
travel  orders.  The  attendance  as  witnesses  of  persons  on  the  retired 
list  (not  assigned  to  active  duty)  should  be  obtained  in  the  same 
manner,  and  they  are  entitled  to  the  same  fees  and  mileage  as 
civilian  witnesses  not  in  the  Government  employ.  No  travel  order 
will  be  issued  in  such  cases. 

164.  Procedure  to  secure  attendance  of  civilian  witness. — Unless  he  has 
reason  to  believe  that  a  formal  service  of  subpoena  will  be  required, 
the  judge  advocate  will  endeavor  to  secure  the  attendance  of  a 
civilian  witness  by  correspondence  with  him,  sending  him  duplicate 
subpoena  properly  filled  out,  with  a  request  to  accept  service  on  one 

tg  the  printed  statement,  "I  hereb;  service  of  the 

ab<>'.  ia,"   and   to   return  same  to  the  judge  advocate.    for 

which    purpose    a    return    ad  envelope    should    be 

inclosed.  Ordinarily  there  will  be  no  difficulty  in  securing  the  vol- 
untary attendance  of  a  civilian  witness  if  he  is  informed  that  his 
and  mileage  will  not  be  reduced  by  reason  of  his  voluntary 
attendance,  and  that  a  voucher  for  his  fees  and  mileage  going  to  and 
r,>t'  '  the  place  of  the  sitting  of  the  court-martial  will  be 

delivered  to  him  promptly  on  being  discharged  from  attendant 
the  court.     If  such  informal  methods  arc  ineffective,  formal  dupli- 
cate subpoena  will  be  issued  by  the  judge  advocate  with  a  view  to 
service  on  the  witness.     If  the  witness  is  at  or  D  post  where 


80  OB    COURTS-MARTIAL. 

ervice  will  be  by  the  judge  advocate  or  by 
ii  designated  by  him.     If  the  witness  is  not  at  or  near  the 
:i  is  sitting,  but  or  near  another  military 

command,  or  detachment,  the  judge  advocate  will  send  the 
duplicate  subpoena  direct  to  the  commanding  officer  of  such  post, 
command,  or  detachment,  requesting  service  of  the  same.  CTpon 
receipt  of  the  request  the  officer  receiving  it  will  serve  the  subpoena 
or  cause  it  to  1"  -.rvr.1.  The  service  will  be  made  without  delay, 
and  the  retained  copy  of  the  subpoena,  with  proof  of  service  indorsed 
od  it.  will  be  senl  at  once  direct  to  the  judge  advocate.  If  in  any 
instance  travel  is  necessary  to  serve  the  subpoena,  a  request  will 
promptly  be  made  by  the  commanding  officer  of  the  post,  command, 
or  detachment,  on  the  proper  authority  for  travel  orders.  If  the 
witni  act  reside  near  a  post,  command,  or  detachment,  the 

subpoena   will   be   sent   direct  to  the   department   or   other  proper 
commander  requesting  service  of  the  same. 

165.  When  accused  must  be  confronted  with  witness. — Depositions  can 
not  be  introduced  by  the  prosecution  in  capital  cases.  (See  A.  W.  25, 
Chap.  XT.  Evidence,  and  Chap.  IV,  Sec.  III.)  In  such  cases,  fc] 
fore,  as  well  as  in  others  in  which  the  judge  advocate  believes  that 
the  interests  of  justice  demand  that  the  accused  be  confronted  by  a 
witness  against  him,  or  believes  that  for  any  reason  a  witness  should 
testify  in  the  presence  of  the  court,  he  will  take  the  necessary  steps 
to  secure  the  attendance  of  such  witness  or  witnesses. 

166.  Procedure  to  obtain  books,  documents,  or  papers. — If  a  civilian  has 
in  his  possession  a  book,  document,  or  paper  desired  to  be  introduced 
in  evidence,  a  subpoena  duces  tecum  will  be  prepared  and  issued  by 

advocate,  directing  the  person  to  appear  in  court  and  to 
v  with  him  such  book,  document,  or  paper,  which  should  be  de- 
scribed in  sufficient  detail  to  enable  it  to  be  readily  identified. 
[Note. — r<>r  form,  see  Appendix  13.] 

167.  Civilian  witness  in  confinement. — The  testimony  of  a  witness  who 
is  in  confinement  in  the  hands  of  the  civil  authorities  will  ordinarily 
be  obtained  by  means  of  a  deposition  (A.  W.  25),  but  if  for  any  rea- 
son it  is  necessary  that  such  a  witness  testify  in  court,  an  endeavor 
should  be  ••  advocate  to  make  arrangements  with 
the  civil  authorities  to  obtain  his  appearance. 

168.  Warrant  of  attachment. — In  view  of  the  provisions  of  A.  W.  23 
providing  for  the  punishment  on  information  before  a  district  court 
of  the  United  States  or  in  a  court  of  original  criminal  jurisdiction 
in  any  of  (lie  territorial  p<  ssessions  of  the  I  Fnited  State:  of  a  civilian 
who  willfully  neglects  or  refuses,  after  he  hi  luly  subpoenaed} 


COURTS-MARTTAL WITNESSES  AND  DEPOSITIONS.  81 

to  appear  as  a  witness  before  any  military  court,  commission,  court 
of  inquiry,  or  board,  circumstances  requiring  the  issue  of  a  warrant 
of  attachment  will  be  very  rare.  (For  form,  see  Appendix  11.) 
Whenever  it  becomes  necessary  to  issue  a  warrant  of  attachment,  the 
judge  advocate  or  summary  court-martial  will  direct  or  deliver  it  for 
execution  to  an  officer  designated  by  the  department  commander  for 
the  purpose.  (12  Op.  Atty.  Gen.,  501.)  As  the  arrest  of  a  per- 
son under  a  warrant  of  attachment  involves  depriving  him  of  his 
liberty,  the  authority  for  such  action  may  be  inquired  into  by  a 
writ  of  habeas  corpus.  For  this  reason  the  officer  executing  the  war- 
rant of  attachment  should  be  provided  with  the  following  papers  to 
enable  him  to  make  a  full  return  in  case  a  writ  of  habeas  corpus 
is  served  upon  him : 

(a)  A  copy  of  the  charges  in  the  case,  sworn  to  be  a  full  and  true 
copy  of  the  original  by  the  judge  advocate  of  the  court  (or  summary 
court-martial). 

(b)  A  copy  of  the  order  appointing  the  court-martial,  sworn  t<>  be 
a  fall  and  true  copy  of  the  original  by  the  judge  advocate  of  the 
court  (or  summary  court-martial). 

(c)  The  original  subpoena,  showing  proof  of  service  of  same. 

(d)  An  affidavit  of  the  judge  advocate  or  summary  court-martial 
that  the  person  being  attached  is  a  material  witness  in  the  case;  that 
he  has  failed  and  neglected  to  appear,  although  sufficient  time  has 
elapse!  for  that  purpose;  and  that  no  valid  excuse  has  been  offered 
for  such  failure  to  appear. 

(e)  The  original  warrant  of  attachment. 

In  executing  such  process  it  is  lawful  to  use  only  such  force  as  may 

be  necessary  to  bring  the  witness  before  the  court.     Whenever  force 

is  actually  required  the  post  commander  nearest  the  residence  of  the 

ness  will  furnish  a  military  detail  sufficient  to  execute  the  process. 

169.  Habeas   corpus   proceedings   in   connection  with   attachments.— 

If,  in  executing  a  warrant  of  attachment,  the  officer  detailed  for 

that  purpose  should  be  served  with  a  writ  of  habeas  corpus  from  any 

United  States  court,  or  by  a  United  States  judge,  for  the  production 

of  the  witness,  the  writ  will  be  promptly  obeyed,  and  the  person 

alleged  to  be  illegally  restrained  of  his  liberty  will  be  taken  before 

the  court  from  which  the  writ  has  issued,  and  a  return  made  setting 

forth  the  reasons  for  his  restraint.     The  officer  upon  whom  such  a 

writ  is  served  will  at  once  report,  by  telegraph,  the  fact  of  such  serv- 

lirect  to  The  Adjutant  General  of  the  Army  and  to  the  command- 

general  of  the  department.     (See  Appendix  15,  Form  A.) 

(b)  If,  however,  the  writ  of  habeas  corpus  is  issued  by  any  State 

court  (or  a  State  judge)  it  will  be  the  officer's  duty  to  make  respectful 

return,  in  writing,  informing  the  court  that  he  holds  the  person 

named  in  the  writ  by  authority  of  the  United  States  pursuant  to  a 

warrant  of  attachment  issued  under  section  3  of  the  act  of  Congress 

.  ;°— 18 7 


82  MANUAL    FOB   COUKXS-MABTIAL. 

approved  August  29,  L916  (A.  W.  22),  by  a  judge  advocate  of  a  law- 
fully convened  general  or  special  court-martial  (or  by  a  summary 
court-martial),  and  that  the  Supreme  Court  of  the  United  States 
has  decided  that  State  courts  and  judges  are  without  jurisdiction  in 
such  cases,  (See  Appendix  15,  Form  B.)  After  having  made  the 
above  return  to  a  \\  rit  issued  by  a  State  court  or  judge,  it  is  the  duty 
of  the  officer  to  hold  the  prisoner  in  custody  under  his  warrant  of 
attachment,  and  to  i  dience  to  the  mandate  or  process  of  any 

government  except  that  of  the  United  States.  Consequently,  it  is 
his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be  taken,  before  a 
State  judge  or  court  upon  a  writ  of  habeas  corpus  issued  under  State 
authority. 

170.  Punishment   for   refusal   to    appear    or   testify. — Although  the 

of  a  \\  itness  as  above  described  can  be  enforced,  there  is  nc 

power  in  a  court-martial  itself  to  compel  a  witness  to  testify  or  to 

punish  him  for  not  testifying.     The  only  procedure  is  that  provided 

in  A.  W.  23,  as  follows: 

Every  person  not  subject  to  military  law,  who  being  duly  sub 
o  appear  as  a  witness  before  (a)  any  military  court,  com- 
sion,  court  of  inquiry,  or  board,  or  (b)  any  officer,  military  or 
civil,  designated  to  take  a  deposition  to  be  read  in  evidence  In 
such  court,  commission,  court  of  inquiry,  or  board,  willfully  (a) 
neglects  or  refuses  to  appear,  or  (b)  refuses  to  qualify  as  a  witness, 
or  to  testify,  or  (c)  produce  documentary  evidence  which  such  person 
may  have  been  legally  subpoenaed  to  produce,  shall  be  deemed 
guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the  United  States,  or  in  a  court  of 
original  criminal  jurisdiction  in  any  of  the  Territorial  possessions  of 
the  United  States,  jurisdiction  being  hereby  conferred  upon  such 
courts  for  such  purpose;  and  it  shall  be  the  duty  of  the  United  States 
district  attorney  or  the  oflicer  prosecuting  for  the  Government  in  any 
such  court  of  original  criminal  jurisdiction,  on  the  certification  of  the 
facts  to  him  by  the  military  court,  commission,  court  of  inquiry,  or 
board,  to  file  an  information  against  and  prosecute  the  person  so 
offending,  and  the  punishment  of  such  person,  on  conviction,  shall  be 
a  fine  of  not  more  than  $500.  or  imprisonment  not  to  exceed  six 
months,  or  both,  at  the  discretion  of  the  court:  Provided,  That  the 
fees  of  such  witness  and  his  mileage,  at  the  rates  allowed  to  witnesses 
attending  the  courts  of  the  United  States,  shall  be  duly  paid  or 
tendered  said  witness,  such  amounts  to  be  paid  out  of  the  appropria- 
tion for  the  compensation  of  witnesses.     (A.  W.  23.) 

[Nora,  ir  :m  officer  who  is  charged  with  serving  a  subpoena  pays  the  neces- 
s:iry  fees  and  mileage  to  a  witness,  taking  a  receipt  therefor,  lie  is  entitled  to 
reimbursement.      (Dec.    Comp.   Treas.,    Sept.   10,   1901,   published   in  Cir.   38, 

A.  e    <).,   1901.)] 


COURTS-MARTIAL WITNESSES  AXD  DEPOSITIONS.  83 

171.  Same  in  Philippine  Islands. — Every  person  not  belonging  to  the 
Army  of  the  United  States,  who,  in  the  Philippine  Islands,  being 
duly  subpoenaed  to  appear  therein  as  a  witness  before  a  general  court- 
martial  of  said  Army  (or  naval  court),  willfully  neglects  or  refuses 
to  appear,  or  refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce 
documentary  evidence,  which  such  person  may  have  been  legally  sub- 
poenaed to  produce,  shall  be  punished  by  a  fine  of  not  more  than 
$500,  United  States  currency,  or  imprisonment  not  to  exceed  six 
months,  or  both,  at  the  discretion  of  the  court,  and  it  shall  be  the 
duty  of  the  proper  fiscal  or  prosecuting  officer,  on  the  certification 
of  the  facts  to  him  by  the  general  court-martial,  to  file  in  the  proper 
court  a  complaint  against  and  prosecute  the  person  so  offending: 
Pro  ruled,  That  $1.50,  United  States  currency,  for  each  day's  attend- 
ance, and  5  cents,  United  States  currency,  per  mile  for  going  from 
his  residence  to  the  place  of  trial  or  hearing,  and  5  cents  per  mile 
for  returning,  shall  be  duly  tendered  to  said  witness:  Provided 
further,  That  no  witness  shall  be  compelled  to  incriminate  himself 
or  to  answer  any  question  which  may  tend  to  incriminate  him.  (Acts 
1130  and  1243,  P.  I.  Commission.)  The  provisions  of  this  paragraph 
do  not  apply  to  witnesses  before  special  and  summary  courts. 

[Note. — Employees  of  the  civil  government  of  the  Philippine  Islands,  paid 
from  Insular  funds  of  the  islands,  are  held  not  to  he  in  the  employ  of  the 
1  States.     (Dec.  Comp.  Treas.,  Aug.  20,  1902,  published  in  Cir.  45,  A.  G.  O., 
1902. I  i 

172.  Tender  of  fees  preliminary  to  prosecution. — In  case  a  civilian  wit- 
ness is  duly  subpoenaed  under  the  authority  of  A.  W.  22  and  willfully 
neglects  or  refuses  to  appear  or  refuses  to  qualify  as  a  witness,  or  to 
testify  or  produce  documentary  evidence  which  he  may  have  been 
Legally  subpoenaed  to  produce,  he  will  at  once  be  tendered  or  paid 
by  the  nearest  quartermaster  one  day's  fees  and  mileage  for  the 
journeys  to  and  from  the  court,  and  will  thereupon  be  again  called 
upon  to  comply  with  the  requirements  of  the  law.  Upon  failing  the 
second  time  to  comply  with  the  requirements  of  the  law  a  complete 
report  of  the*  case  will  be  made  to  the  officer  exercising  general  court- 
martial  jurisdiction  over  the  command  with  a  view  to  presenting  the 
facts  to  the  Department  of  Justice  for  the  punitive  action  contem- 
plated in  A.  W.  23. 

173.  Contempts — (a)  Authority  to  punish. — A  court-martial  may 
punish,  at  discretion,  subject  to  the  limitations  contained  in  A.  W.  14 
any  person  who  uses  any  menacing  words,  signs,  or  gestures  in  its 
presence,  or  who  disturbs  its  proceedings  by  any  riot  or  disorder 

i  A.  W.  32.)  The  power  to  so  punish  is  vested  in  general,  special, 
and  summary  courts-martial.  Punishments  adjudged  for  contempt, 
like  other  punishments  adjudged  by  courts-martial,  require  the* 
approval  of  the  reviewing  authority  in  order  to  be  effective. 


34  MANUAL   F(  B   COTJETS-MABTTAL. 

(b)  Persons  who  may  be  punished  for  contempt. — The  words  "  any 
ii."  as  used  in  A.  AY.  32,  appear  to  include  civilians  as  well  as 

military  j  .In  view.  '  E  the  embarrassment  liable  to 

attend  th<  i.  through  military  machinery,  of  a  punishment 

adjud  '   civilian  for  a.   contempt  under  the  article,  it 

would  generally  be  ad\  [sable  art  to  confine  itself  to  causing 

the  party  to  be  removed  as  a  disorderly  person,  and,  in  an  aggra- 
de procure  a  complaint  to  be  lodged  against  him  for 
h  of  the  public  peace.     (Winthrop,  p.  -10:2.) 

(c)  Direct  and  constructive  contempts. — A  direct  contempt  is  one 
committed  in  the  presence  or  immediate  proximity  of  a  court  while 
it  is  in  session.     An  indirect  or  constructive  contempt  is  one  not  so 

mitted.  The  conduct  described  in  A.  W.  32  constitutes  direct  con- 
tempt. But  conduct  on  the  part  of  a  person  subject  to  military  law 
and  amounting  to  a  constructive  contempt  may  be  punished  like  any 
ether  conduct  that  is  prejudicial  to  good  order  and  military  discipline, 
by  bringing  th  ■  to  trial  before  another  court  on  charges  under 

A.  W.  96. 

(d)  Procedure. — "Where  a  contempt  within  the  description  of  A.  W. 
32  has  been  committed  and  the  court  deems  it  proper  that  the  offender 
shall  be  punished,  the  proper  course  is  to  suspend  the  busi- 
ness and,  after  giving  the  party  an  opportunity  to  be  heard  in  ex- 
planation, to  proceed,  if  the  explanation  is  insufficient,  to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The 
action  taken  is  proper!}'  summary,  a  formal  trial  not  being  called  for. 
Close  confinement  in  quarters  or  in  the  guardhouse  during  trial  of 
the  pending  case  or  forfeiture  of  a  reasonable  amount  of  pay,  has 
been  the  more  usual  punishment.  A  full  record  of  the  proceeding 
is  at  once  made,  not  separate  from,  but  in  and  as  a  part  of  the  regular 
record  of  the  case  on  trial,  showing  the  occasion  and  circumstances 
of  the  contempt,  the  words  or  acts  which  constituted  it,  the  excuse 
or  statement,  if  any,  of  the  party,  the  action  taken  by  the  court,  its 

■  nent  and  the  disposition  of  the  offender.     (Wintlrrop,  p.  469.) 

ling  against  a  military  person  for  contempt  in  the 

manner  contemplated  by  this  article,  the  alternative  course  may  be 

pursued  of  bringing  him  to  trial  before  a  new  court  on  a  charge  of  a 

ler  under  A.  W.  96. 

tion  IT. 

DEPOSITIONS. 

174.  When  admissible. — A  duly  authenticated  deposition  taken  upon 
reasonable  notice  to  the  opposite  partj  may  be  read  in  evidence  be- 
fore any  military  court  or  commission  in  any  case  not  capital,  or  in 
any  proceeding  before  a  court  of  inquiry  or  a  military  board,  if  such 


COUETS-MATtTIAL WITNESSES   AND  DEPOSITIONS.  85 

deposition  be  taken  when  the  witness  resides,  is  found,  or  is  about  to 
go  beyond  the  State,  Territory,  or  District  in  which  the  court,  com- 
mission, or  board  is  ordered  to  sit,  or  beyond  the  distance  of  100 
miles  from  the  place  of  trial  or  hearing,  or  when  it  appears  to  the 
satisfaction  of  the  court,  commission,  board,  or  appointing  authority 
that  the  witness,  by  reason  of  age,  sickness,  bodily  infirmity,  impris- 
onment, or  other  reasonable  cause,  is  unable  to  appear  and  testify  in 
person  at  the  place  of  trial  or  hearing:  Provided,  That  testimony 
by  deposition  may  be  adduced  for  the  defense  in  capital  cases. 
(A.  W.  25.) 
[Note. — For  form  for  interrogatories  and  depositions,  sc<>  Appendix  12.] 

175.  Before  whom  taken. — Depositions  to  be  read  in  evidence  before 
military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and 
authenticated  by  any  officer,  military  or  civil,  authorized  by  the  laws 
of  the  United  States  or  by  the  laws  of  the  place  where  the  deposition 
is  taken  to  administer  oaths.     (A.  W.  26.) 

176.  Interrogatories,  how  submitted. — The  procedure  for  submitting 
interrogatories  for  a  deposition  is  as  foil 

(a)  The  party  desiring  the  deposition  submits  to  the  opposite 
party  the  interrogatories  which  he  wishes  propounded  to  the  p< 
whose  deposition  he  desires,  and  the  opposite  party  then  submits  to 
him  such  cross-interrogatories,  if  any,  as  he  may  desire.  Such  addi- 
tional direct  and  cross-interrogatories  may  be  submitted  as  desired; 
or 

(h)  The  party  desiring  the  deposition  submits  to  the  court,  mili- 
tary commission,  or  board  the  interrogatories  which  he  wishes  pro- 
pounded to  the  person  whose  deposition  he  desires.  The  opposite 
party  then  submits  to  the  court,  military  commission,  or  board  such 
cros— interrogatories,  if  any,  as  he  may  desire.  The  court,  military 
commission,  or  board  then  submits  such  additional  interrogatories 
Lay  deem  proper  and  desirable,  and  such  additional  direct 
and  cross-interrogatories  may  be  submitted  as  are  desired. 

(r)  Where  the  court,  military  commission,  or  board  desires  that 
the  deposition  of  a  particular  person  be  obtained,  it  will  cause  in- 
terrogatories to  be  prepared  accordingly.  The  prosecution  and  de- 
fense (or  other  party  or  parties  in  interest)  then  submit  such  inter- 
they  may  desire.  Such  additional  interrogatories  may 
d  by  the  court,  military  commission  or  board, 
or  by  a  party  in  interest. 

177.  Procedure  to  obtain  deposition. —  (a)  All  the  interrogatories  to 
be  propounded  to  the  person  are  entered  upon  the  form  for  interroga- 
tories and  deposition,  and  the  trial  judge  advocate,  summary  court, 


86  MANUAL   FOB   OOUBTS-MABTIAL. 

or  recorder  will  take  appropriate  steps  to  cause  the  desired  deposition 
to  be  taken  with  the  Least  practicable  delay.  In  an  ordinary  case 
be  will  either  send  the  interrogatories  to  the  commanding  officer  of 
the  post,  recruiting  station,  or  other  military  command  at  or  nearest 
which  the  person  whose  deposition  is  desired  is  stationed,  resides,  or 
is  understood  to  be,  or  will  send  them  to  some  other  responsible  per- 
son, preferably  a  person  competent  to  administer  oaths,  at  or  near 
at  which  the  person  whose  deposition  is  desired  is  under- 
tone, !..  » the  interrogatories  may  be  sent  to  the 
department  or  other  superior  commander  or  to  the  witness  himself, 
and  in  any  rase  they  will,  when  necessary,  be  accompanied  by  a 
proper  explanatory  letter. 

(b)  When  interrogatories  are  received  by  a  commanding  officer  he 
will  either  take  or  cause  to  be  taken  the  deposition  thereon.  He  may 
send  an  intelligent  enlisted  man — preferably  a  noncommissioned 
officer,  if  available — to  the  necessary  place  for  the  purpose  of  ob- 
taining the  deposition,  or  he  may  properly  arrange  by  mail  or  other- 
wise that  the  deposition  be  taken.  The  deposition  will  be  taken  with 
the  least  practicable  delay,  and  when  taken  will  be  sent  atonce  direct 
to  the  judge  advocate  of  the  court-martial  trying  the  case  or  other 
proper  person. 

(c)  If  the  witness  whose  deposition  is  desired  is  a  civilian,  the 
judge  advocate  or  other  proper  person  sending  interrogatories  as 
above  will  inclose  with  them  a  prepared  voucher  for  the  fees  and  mile- 
age of  the  witness,  leaving  blank  such  spaces  provided  therein  as  it 
may  be  necessary  to  leave  blank,  accompanied  by  the  required  number 
of  copies  of  the  orders  appointing  the  court,  military  commission,  or 
board.  The  judge  advocate,  summary  court,  or  recorder  will  also  send 
with  the  interrogatories  duplicate  subpoena  requiring  the  witness  to 
appear  in  person  at  a  time  and  place  to  be  fixed  by  the  officier,  mili- 
tary or  civil,  who  is  to  take  the  deposition.  If  the  name  of  this  officer 
is  not  known,  the  space  provided  for  it  will  be  left  blank.  If  a  mili- 
tary officer  takes  the  deposition,  be  will  complete  the  witness  voucher, 
certify  it,  and  transmit  it  to  the  nearest  disbursing  quartermaster 
for  payment.  Winn  the  deposition  is  to  be  taken  by  a  civil  officer  he 
will  be  asked  to  obtain  and  furnish  to  the  military  officer,  requested 
or  designated  to  cause  the  deposition  to  be  taken,  the  necessary  data 
for  the  completion  of  the  witness  voucher,  and  the  latter  will  com- 
plete  the  voucher,  certify  it.  and  transmit  it  to  the  nearest  disburs- 
ing quartermaster  for  payment. 

In  the  ease  of  a  military  witness  subpoena  will  not  accompany  the 
interrogatories,  but  the  officer  before  whom  the  deposition  is  to  be 
taken  will  take  the  steps  to  have  the  witness  appear  at  the 

proper  time  and  place. 


COURTS-MARTIAL WITNESSES   AND  DEPOSITIONS.  87 

178.  Tracing  delayed  depositions. — Judge  advocates  will  be  prompl  in 

preparing  and  forwarding  interrogatories.     If  the  deposition  is  not 
received  within  a  reasonable  time,  a  letter  of  inquiry  will  be  sent; 
and,  if  a  prompt  explanation  of  the  delay  is  not  received,  the  dep art 
ment  commander  or  other  proper  superior  will  be  advised. 

179.  Designation  of  deponent  by  official  title. — Where  it  is  desired  to 
take  the  deposition  of  some  person  holding  a  certain  office  or 

as,  for  instance,  a  troop  commander,  first  sergeant,  quartermaster  ser- 
geant, cashier  of  a  bank,  post  exchange  officer,  etc.,  and  the  name  of 
the  person  is  unknown,  interrogatories  may  be  prepared  in  the  usual 
way  for  submission  to  the  person  holding  the  office  or  position,  with- 
out naming  him  unless  it  shall  appear  that  the  accused  will  be  preju- 
diced thereby. 

180.  Deponent's  answer  to  be  responsive. — Before  a  witness  gives  hi? 
answers  to  the  interrogatories  they  should  be  read  and,  if  necessary 
explained  to  him,  or  he  should  be  permitted  to  read  them  over  in 
order  that  his  answers  may  be  clear,  full,  and  to  the  point.  The  per- 
son taking  the  deposition  should  not  advise  the  witness  how  he  should 
answer,  but  he  should  endeavor  to  see  that  the  witness  understands 
the  questions,  and  what  is  desired  to  be  brought  out  by  them,  and  that! 
his  answers  are  clear,  full,  and  to  the  point. 

181.  Fees  for  taking  depositions. — Civil  officers  before  whom  depo- 
sitions are  taken  for  use  before  courts-martial  will  be  paid  the  feea 
allowed  by  the  law  of  the  place  where  the  depositions  are  taken. 

182.  Taking  depositions  in  foreign  country. — If  the  evidence  desired 
from  a  witness  residing  in  a  foreign  country  is  necessary  and  mate 
rial  and  is  desired  to  be  read  before  a  court-martial,  military  commis- 
sion, court  of  inquiry,  or  military  board  sitting  within  any  of  tL: 
States  of  the  Union  or  the  District  of  Columbia,  interrogatories 
(accompanied  by  the  necessary  vouchers  for  fees  and  mileage)  will 
ordinarily  be  forwarded  through  military  channels  to  The  Adjutant 
General  of  the  Army.  They  will  then  be  transmitted  by  the  Secre- 
tary of  War  to  the  Secretary  of  State,  with  the  request  that  they  be 
sent  to  the  proper  consul  of  the  United  States  and  tiie  deposition  of 
the  witness  he  taken.  In  the  case  of  troops  serving  along  the  inter- 
national boundaries,  outside  of  the  United  States  proper,  or  in 
foreign  countries,  the  officer  exercising  general  court-martial  juris- 
diction may.  in  his  discretion,  detail  an  officer  to  take  the  deposition 
of  a  civilian  witness,  or  In-  may  send  the  interrogatories  direct  to  the 
consul  of  the  United  States  nearest  the  place  of  residence  of  the 
witness  with  the  request  that  the  deposition  be  taken.  In  the  latter 
case  the  interrogatories  will  be  accompanied  by  the  proper  vouc 
for  the  fees  and  mileage  of  the  wit ; 

[Note.— For  use  of  depositions  ;is  evidence,  see  < !hap.  XI.  Evidence.] 


38  MANUAL    POB   COURTS  MABT1 

:  l<\    TIT. 
FEES,   MILEAGE,   AND   EXPENSES   OF  WITNESSES. 

183.  Officers  and  soldiers,  active  or  retired. — Officers  and  soldiers  on 

list  required  to  attend  a  court-martial  as  witnesses  are 

ititled  t<    receive  mileage  and  fees  like  civilian  witnesses  but 

ttitled  to  such  travel  allowances  as  the  law  allows  to  officers 

and  soldiers  traveling  under  orders;  but  a  retired  officer,  not  assigned 

stive  duty,  or  a  retired  soldier,  is  entitled  to  the  per  diem  and 

mileage  provided  for  civilian  witnesses  not  in  Government  employ. 

e.— The  r.  les  of  persons  In  the  military  service  or 

of  civilians  In  the  Government  employ  duly  subpoenaed  and  appearing  b 
civil  courts  whether  State  or  I  payable  by  the  civil  authorities.] 

184.  Civilians  in  Government  employ. — Civilians  in  the  employ  of  the 
eminent   when    traveling    upon    summons   as    witnesses   before 

military  courts  are  entitled  to  transportation  in  kind  from  their 
place  of  residence  to  the  place  where  the  court  is  in  session  and 
return.  If  no  transportation  be  furnished,  they  are  entitled  to 
reimbursement  of  the  cost  of  travel  actually  performed  by  the  short- 
est usually  traveled  route,  including  transfers  to  and  from  railway 
stations,  at  rates  not  exceeding  50  cents  for  each  transfer,  and  the 
cost  of  sleeping-car  accommodations  to  which  entitled  or  steamer 
berth  when  an  extra  charge  is  made  therefor.  They  are  also  en- 
titled to  reimbursement  of  the  actual  cost  of  meals  and  rooms  at  a 
rate  not  exceeding  $3  per  day  for  each  day  actually  and  unavoidably 
consumed  in  travel  or  in  attendance  upon  the  court  under  the  order 
unmons.  No  allowance  will  be  made  to  them  when  attendance 
upon  court  does  not  require  them  to  leave  their  stations. 

185.  Civilians  not  in  Government  employ. — A  civilian,  not  in  Govern- 
ment employ,  duly  summoned  to  appear  as  a  witness  before  a  mili- 
tary court,  commission,  or  board  or  at  a  place  where  his  deposition 
is  to  be  taken  for  use  before  such  court,  commission,  or  board,  will 
receive  $1.50  for  each  day  of  his  actual  attendance  before  such  court, 

on,  or  board  or  for  the  purpose  of  having  his  deposition 
taken,  and  5  cents  a  mile  for  going  from  his  place  of  residence  to 
the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5  cents  a 
mile  for  returning,  except  as  follows: 

(a)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in 
idance  as  above  stated  and  15  cents  for  each  mile  necessarily 
(raveled  over  stage  line  or  by  private  conveyance  and  10  cents  for 
each  mile  over  any  railway  or  steamship  line. 

(M  In  Alaska,  east  of  (he  one  hundred  and  forty-hrst  degree  of 
longitude,  he  will  receive  $2  a  day  while  in  attendance  as  above 
stated  and  L0  cents  a  mile,  and  west  of  said  degree  $4  a  day  and  15 
cents  a  mile. 


COURTS-MARTIAL — WITNESSES   AND   DEPOSITIONS.  89 

(c)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon, 
California.  Nevada.  Idaho,  Colorado,  Utah,  New* Mexico,  and  Ari- 
zona will  receive  $3  a  day  for  the  time  of  actual  attendance  as  above 
stated,  and  for  the  time  necessarily  occupied  in  going  to  and  return- 
ing from  the  same,  and  15  cents  for  each  mile  necessarily  traveled 
over  any  stage  line  or  by  private  conveyance  and  5  cents  for  each 
mile  by  any  railway  or  steamship. 

[Xoie.— I.  Travel  must  be  •  by  the  shortest  usually  travel-:  rcrate — 

tablished  lines  of  railroad,  -  earner — the  time  occu] 

by    the   official   schedules,   reasonable   allowance   b  e   for 

unavoidable  detention. 

2.  These  rates  apply  to  the  Philippine  Islands.     (SeeCir.  45,  ;'02.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  tri  <  on 
transport  or  other  Government  conveyance,  is  entitled  to  r>7.i4:i  per  cent  of  5 
cents'per  mile  (equal  to  2.857  cents  per  mile).  (Comp.  Dec,  Aug.  20,  1902, 
published  in  Cir.  45,  A.  G.  O.,  1902.)] 

186.  Payment  for  return  journey. — The  charges  for  return  journeys 
of  witnesses  will  be  made  upon  the  basis  of  the  actual  charges  allowed 
for  travel  to  the  place  of  giving  testimony,  and  the  entire  account 
thus  completed  will  be  paid  upon  discharge  from  attendance,  without 
waiting  for  completion  of  return  travel. 

187.  Contents  of  vouchers. — The  items  of  expenditure  authorized  for 
civilian  witnesses  will  be  set  forth  in  detail  and  made  a  part  of  each 
voucher  for  reimbursement.     No  other  items  will  be  allowed. 

The  certificate  of  the  judge  advocate,  or  other  officer,  will  be  evi- 
dence of  the  fact  and  period  of  attendance,  and  will  be  made  upon 
the  voucher. 

When  payment  is  made  under  the  provisions  of  paragraph  isl, 
the  correctness  of  the  items  will  be  attested  by  the  affidavit  of  the 
ess,  to  be  made,  when  practicable,  before  the  officer  who  certifies 
t}\(^  voucher. 

188.  Witness  in  several  trials  on  same  day. — A  civilian  attending  as  a 
Hess  in  several  court-martial  trials  on  the  same  day  is  entitled  to 

a  separate  fee  tor  attendance  in  each  case  (Dig.  Dec.  Comp.,  1894  to 
t  will  receive  mileage  in  only  one  case. 

189.  Voucher  to  be  delivered  to  witness. — A  civilian  witness  not  in 

mploy  who  appears  to  testify  is  entith  d,  upon  his  dis- 
charge from  attendance,  to  receive  from  the  judge  advocate,  if  any 
rder  of  court  of  inquiry  or  board,  etc.),  his 
witness  voucher  properly  filled  out.    If  not  practicable  to  deliver  to 
the  \  at  that  time  his  address  will  be  obtained  and 

his  witne  si   will  be  promptly  forwarded  to  the  nearest 

ang  quartermaster.    To  entitle  a  witness  to  the  payment  of 
■and  □  I  essential  that  he  should  prod 

190.  Lost  voucher.— -Where  the  voucher  •  -  has  been  Lost,  a 
new  voucher  may  be  issued  by  the  judge  advocate  upon  a  satisfa< 


90  ICAKUAL  FOR  COTJBTB-MABTIAL. 

showing  of  such  Loss,  supported  by  affidavit.  The  new  voucher 
should  be  so  noted  as  to  indicate  its  character  and  should  he  for- 
ward d  to  the  Quartermaster  <  reneral  Cor  settlement. 

191.  Fees  for  service  of  subpoena*.— There  is  ao  fee  or  compensation 
fixed  by  statute  or  regulatioD  for  the  service  of  subpoenas  to  secure 
the  attendance  of  witnesses  before  military  courts.     Ordinarily  serv- 

il  be  made  by  an  officer  or  soldier,  but  if  service  by  a  civilian 
eemed  by  the  judge  advocate  or  department  commander  to  be 
preferable,  the  services  of  a  civilian  may  be  used,  and  the  fees  and 
mileage  allowed  by  law  in  that  locality  for  similar  services  may  be 
paid  by  a  quartermaster  from  the  appropriation  "for  expenses  of 
courts-martial,  etc." 

192.  Employment  of  experts.—  "When  the  employment  of  an  ex; 

is  necessary  during  a  trial  by  court-martial  the  necessity  for  such  em- 
ployment should  be  made  to  appear  by  a  resolution  of  the  court. 
This  resolution  will  be  forwarded  by  the  judge  advocate,  in  advance 
,,!'  the  employment."  to  the  authority  appointing  the  court,  with  a  re- 
quesl  for  authority  to  employ  the  expert  and  for  a  decision  as  to  the 
compensation  to  be  paid  him.     The  requesl   should,  if  practicable, 

the  compensation  that  is  recommended  by  the  judge  advo 
The  compensation  of  the  expert,   including  the  compensation    for 
photographs  that  may  be  necessary  in  connection  with  his  testimony, 
will  be  paid  out  of  the  appropriation  "for  expenses  of  courts-mar- 
tial, 

[Note.— Where,  in  advance  of  trial,  the  judge  advocate  knows  thai   the  em- 
ployment of  an  expert  will  be  necessary,  he  should,  without  delay,  apply  i<>  the 
appointing  authority  for  authority  to  employ  the  expert,  statin-  the  necessity 
therefor  and  probable  cost  thereof.] 
(C.  M.  C.J/.Xo.J.) 

193.  Expenses  of  courts-martial,  etc.,  how  payable.— The  fees  of  civil- 
ian witnesses,  the  mileage  of  both  civil  and  military  witnesses,  the 

i  fee  of  the  proper  official  for  certified  copy  of  a  marriage  certifi- 
cate, the  expense  of  procuring  a  transcript  of  a  stenographer's 
of  testimony  taken  before  a  United  States  commissioner,  the  f< 

itary  for  swearing  a  witness,  and  the  expenses  (including  rail- 
way fare  and  hotel  bills)  of  a  United  States  r:,!-ul  stationed  in  a 

ign  country  in  taking  depositions,  when  such  items  are  incurred 
in  connection  with  a  trial  before  a  court-martial  or  military  commi  - 
sion,  or  investigation  before  a  court  of  inquiry,  are  paid  by  the 
r  Cups  out  of  the  annual  appropriation  "  for  expenses 
of  courts-martial,  etc."  If  no  quartermaster  be  present  at  the  place 
w |  ere  the  courl  is  sitting  the  vouchers  may  be  transmitted  dii 
any  quartermaster.     Such  vouchers  are  nol  transferable. 

I  Note.— Blanfe  vouchers  may  be  procured  from  any  disbursing  quartermaster.] 


CHAPTER  XI. 
COURTS-MARTIAL— EVIDENCE. 

(Revised  and  approved  by  Professor  Wigmore.) 


Section  I.  Introductory  provisions :  Pa36- 

194.  ( leneral  remarks 

195.  The  issues 94 

196.  Analysis  of  evidence  by  judge  advocate  and  counsel 95 

197.  Duties  of  court — Opening  statements 95 

198.  Rules  of  evidence  for  courts-martial 96 

199.  Rules  -where  found 97 

200.  Rules  of  evidence  to  be  applied  irrespective  of  rank 98 

201.  Protection  of  witnesses 98 

202.  Evidence  must  be  material  and  relevant 98 

Section  II.  Circumstantial  evidence: 

203.  Circumstantial  evidence 99 

204.  Illustration  of  difference  between  good  and  bad  circumstantial  evidence  99 

205.  Evidence  of  character  of  accused,  and  of  Ms  services 100 

206.  Motive,  etc 100 

Section  III.  Testimonial  evidence: 

207.  Testimonial  evidence 101 

208.  Competency  rule  in  general 101 

209.  Competency  of  witness 102 

210.  General  capacity  of  witness 102 

211.  Moral  incapacity  of  witness 102 

212.  Mental  incapacity  of  witness 102 

213 .  Interest  or  bias. 102 

214.  Where  accused  is  witness.' 103 

215.  Procedure  where  accused  fails  to  testify  or  make  a  statement 103 

216.  Effect  of  turning  state's  evidence 104 

217 .  Competency  of  accused  when  testifying  against  an  accomplice 104 

218.  Expert  capacity 104 

219.  Insanity  of  accused 104 

220.  Testimonial  knowledge 1°6 

221 .  ITearsay  evidence 107 

222.  Dying  declarations 108 

223.  Res  gestae ] °8 

22 1 .  Evidence  of  conspirators  and  accomplices 119 

225.  Confessions H° 

226.  Admissions  against  interest H2 

227.  Privileged  communications US 

22S.  Privilege  of  wife  and  husband  to  testify 114 

229.  Telegrams  not  privileged 115 

230.  Confidential  papers li5 

91 


02  "    COTJBTS-MABTIJtL. 

Lnued.  rage. 
.  Oommuni                                                                                 aot  privi- 

-  •  115 

;   i;iu  and  patients  not  privi- 

115 

tion  prohibited 115 

bending  to  d  grade 116 

o  aelf-crimination  ceases 116 

dnatiorj  is  a]                   116 

incriminating  question  is  asked 117 

If-criminati  ised  to  submit  to  p  imi- 

iiit.t  i<  .ti 117 

mting 118 

.  IV.     Documents: 

ablic  records 119 

l  official  writings  are  evidence  oi                  I  d  therein 120 

rison  of  handwriting 1 20 

241.  Use  of  memoranda 121 

e 121 

■  indum  for  refreshing  recollection 121 

244.  Books  of  account L21 

2 15.  Maps,  photographs,  etc 122 

of  witnesses: 

iVitnesses  examined  apart  from  each  other -  122 

•  ibjeclions  to  competency;  when  made 122 

'umber  of  witnesses  required 122 

219.  Order  of  examination  of  witnesses 123 

250.  Direct  examination 123 

examination 123 

252.  Redirect  and                    o  Lnation 124 

253.  Examination  by  the  court 124 

I  ions 124 

1-5 

VI.  Credibil 

Whal  credibilty  consists  in 125 

257.  Proofofchai                        ral  reputation 126 

258.  C                   E  crime 126 

•ntradicl  ion 126 

ice,  bias,  etc 120 

126 

radictory  statements  out  of  court 126 

ible 127 

264.  D                                       •:  capital  cases 127 

d  admissibility  of  evidence  127 

ination  of  deposition  by  counsel 127 

127 

Miscellaneoi                                          Ions 128 

Ufidavita  nol  admissible 128 

128 

1 28 

urt  of  inquiry 128 

Evidence  of  pardon 128 

rtial  or  civil  a  urf 129 

mony  in  civil  courts  and  courts-martial 129 


EVIDENCE.  93 

Section  VIII.  Presumptions:  Ta^ 

276.  Presumptions 130 

277.  Presumptions  of  law 130 

278.  Presumptions  of  tact 130 

270.  Prima  facie  evidence 131 

280.  Intent  in  connection  with  crime 131 

281.  Intent  in  military  case.-; 131 

282.  Ignorance  of  law 132 

283 .  Ignorance  of  fact 133 

284.  Evidence  of  desertion 133 

(a)  Statutory  rules  of  evidence 134 

285.  Drunl  i                    i  >wing  absence  of  intent 135 

280.  Drunkenness  in  military  cases 136 

287 .  Proof  of  drunkenness 136 

288.  Reasonable  doubt  and  burden  of  proof 136 

Section  IX.  Judicial  notice: 

289.  Judicial  notice 137 


Section  I. 

INTRODUCTORY   PROVISIONS. 

194.  General  remarks. — The  oath  taken  by  members  of  general  and 
special  courts  require  them  to  try  and  determine  "according  to 
evidence"  the  matter  before  them.  A  summary  court,  although  it 
does  not  take  such  an  oath,  will  also  determine  the  matter  before  it 
solely  on  the  evidence  in  the  case,  and  no  evidence  would  be  admis- 
sible before  a  summary  court  that  is  not  admissible  before  general 
and  special  courts.  The  evidence  thus  referred  to,  according  to 
which  the  court  must  decide  the  case,  means  all  the  matters  of  fact 
which  the  court  permits  to  be  introduced,  or  of  which  it  takes  judicial 
notice,  with  a  view  to  prove  or  disprove  the  charges.  Every  item  of 
this  evidence  must  be  introduced  in  open  court,  and  it  would  be 
seriously  irregular  and  improper  for  any  member  of  the  court  to 
convey  to  other  members,  or  to  consider  himself,  any  personal  in- 
formation  that  he  possessed  as  to  the  merits  of  the  ease  or  the  charac- 
ter of  the  accused,  without  stating  it  in  open  court  and,  if  a  witness 
for  the  prosecution,  retiring  as  a  member  of  the  court,  as  provided  in 
A.  W.  8.  But  while  their  knowledge  of  the  facts  must  come  to  them 
from  the  evidence,  the  members  are  expected  to  utilize  their  common 
sense,  their  knowledge  of  human  nature  and  the  ways  of  the  world 
in  weighing  the  evidence  and  arriving  at  a  finding.  In  the  light  of 
all  the  circumstances  of  the  case  they  should  consider  the  inherent 
probability  or  improbability  of  the  evidence  given  by  the  several 
witnesses,  and  with  this  in  mind  the  court  may  properly  believe 
one  witness  and  disbelieve  several  whose  testimony  is  in  conflict 
with  that  of  the  one. 


94  MANUAL   FOR  COURTS-MARTIAL. 

The  methods  which  are  employed  by  courts  of  justice  to  ascertain 
the  facts    that  is.  the  truth— respecting  any  past  transaction  closely 

tble  those  resorted  to  by  an  individual  for  a  similar  purpose.  If 
A  desires  to  ascertain  wheth  r  a  particular  act  did  or  did  not  take 
place,  lie  addresses  himself  to  those  who  were  in  a  situation  to  witness 
the  occurrence  itself,  and  so  endeavors  to  obtain  from  each  person 

nt  his  version  of  the  occurrence.  From  the  testimony  thus  ob- 
tained lie  forms  his  conclusion  as  to  whether  or  not  the  act  took 

■.  In  the  course  of  his  investigation,  however,  he  finds  that  all 
who  were  present  and  witnessed  the  occurrence  as  bystanders  do  not 

testimony  of  equal  importance  or  value.  Some  having  greater 
powers  of  observation  or  better  memories  than  others  give  in  conse- 
quence  more  valuable  testimony.  Some  of  the  witnesses,  being  chil- 
dren or  persons  of  weak  or  unsound  mind,  are  without  the  requisite 
mental  capacity  to  observe  facts  or  to  appreciate  their  relations  to 
each  other;  others,  by  reason  of  their  bad  character,  are  not  regarded 
as  worthy  of  belief  by  their  fellow  citizens;  still  others  were  insane 
or  quite  under  the  influence  of  intoxicating  liquor  at  the  time  of  the 
occurrence,  and  so  were  incapacitated  from  observing.  A,  therefore, 
rejects  some  of  the  statements  as  entirely  untrustworthy;  to  others 
he  attaches  weight  in  proportion  to  their  worthiness  of  belief,  and 
so  endeavors  to  reach  a  conclusion  as  to  the  truth  of  the  occurrence  or 
event  which  was  the  original  subject  of  his  inquiry.  (Davis,  p.  -244.) 
195.  The  issues. — It  is  well  to  understand,  in  the  beginning  of  this 
consideration  of  the  rules  of  evidence,  the  purpose  for  which  the  evi- 
dence is  to  be  introduced  in  the  manner  prescribed  and  laid  dow-n 
by  the  rules.  The  purpose  is  to  elucidate  and  settle  the  issues  raised 
in  the  case  and  to  confine,  under  a  well  devised  and  developed  system 
of  limitations  that  experience  has  shown  to  best  conserve  the  inter- 
ests of  all  concerned,  the  evidence  to  such  issues. 

In  every  criminal  case  the  burden  is  on  the  prosecution  to  prove, 
by  relevant  evidence,  (a)  that  the  oifense  charged  was  really  com- 
mitted, (h)  that  the  accused  committed  it,  and  (c)  that  the  accused 
had  the  requisite  criminal  intent  at  the  time.  These  three  facts 
broadly  constitute  the  issues  in  the  case.  Incidental  issues  will  be 
formed  by  the  necessity  for  proof  of  the  essentials — that  is,  the  gist— 
of  an  offense  and  as  to  character.  Not  only  the  allegations  set  out 
in  the  charges  and  specifications,  but  the  component  parts  of  such 
allegations  as  well,  raise  the  issues  to  be  decided.     For  instance,  in  a 

of  larceny,  where  it  is  charged  that  the  accused  "did  take,  steal 
and  carry  a \\avr  certain  articles  of  value,  the  component  parts  of  the 
allegation  not  specifically  set  out  are  that  such  articles  were  taken 

fraudulently  and  (b)  with  the  felonious  intent  of  depriving  the 
owner  of  1  hem. 


EVIDENCE.  9f 

196.  Analysis  of  evidence  by  judge  advocate  and  counsel. — The  ends  of 
justice  and  saving  of  time  of  all  concerned  imperatively  dems 
careful  analysis  by  both  judge  advocate  and  counsel  for  accused  of 
the  evidence  requisite  for  proof  of  and  defense  against  the  offenses 
charged.  As  a  prerequisite  to  such  analysis  the  law  as  to  the  offenses 
charged  should  be  studied  with  a  view  to  determining  the  essential 
elements  of  the  offense;  that  is,  the  things  that  must  be  proved  by 
the  judge  advocate  in  order  to  justify  a  conviction  and  those  that 
must  be  proved  by  the  defense  to  disprove  or  place  in  reasonable 
doubt  the  proof  offered  by  the  prosecution.  In  other  words,  the 
prosecution  and  defense  should  limit  the  proffer  of  testimony  to 
that  which  is  relevant  to  these  issues,  and  these  only,  and  should 
prepare  the  case  with  only  that  in  view.  The  essentials  or  gist  of 
the  offense  (see  Chap.  XVII)  should  be  so  clearly  denned  in  the 
preparation  of  the  case  that  both  the  judge  advocate  and  counsel 
for  accused  may  be  ready,  by  appropriate  objections  before  the  court, 
to  limit  the  introduction  of  evidence  to  relevant  matter  only,  bearing 
in  mind  that  only  the  essentials  of  the  offense  must  be  proved  and 
that  what  may  be  properly  considered  surplusage  may  be  disregarded. 

Before  trial  an  examination  of  all  the  sources  of  the  evidence  to 
be  submitted  should  be  made  by  the  judge  advocate  and  counsel  for 
accused  and  a  determination  as  to  the  order  in  which  it  will  be  intro- 
1 1  should  be  reached.  The  case  should  be  presented  in  sequence 
of  events  as  nearly  as  possible,  just  as  a  story  would  be  told  by  on€ 
party  who  had  seen  everything  to  which  the  different  witnesses  will 
testify.  When  several  offenses  are  charged,  especially  if  unrelated, 
the  evidence  should  be  directed  to  the  development  of  their  proof  in 
the  order  charged,  so  that  neither  the  court  nor  the  accused  may  be 
in  doubt  at  any  time  as  to  the  specific  offense  to  which  the  testimony 
being  given  refers.  Counsel  for  accused  should  adhere  to  the  same 
principle  in  presenting  evidence  for  the  defense. 

197.  Duties  of  court — Opening  statements. — If  the  court  will  augment 
the  preparation  invoked  in  the  preceding  paragraph  by  constantly 
bearing  in  mind  what  the  issues  are  and  holding  judge  advocate 
mid  counsel  strictly  to  them,  it  will  tend  to  the  expedition  of  business, 
the  securing  of  justice,  and  the  conservation  of  the  interests  of  all 
concerned.  The  court  should  have  before  it  as  a  guide,  always  by 
reference  to  this  manual  in  each  case,  the  following  essential  con- 
siderations as  to  any  evidence  that  may  be  tendered:  (1)  That  it  is 
relevant  t<>  the  issue;  (2)  that  it  is  not  within  the  rule  rejecting 
hearsay  evidence;  (3)  that,  if  it  is  a  confession  or  admission,  it  is 
legally  admissible;  (-4)  that  where  docume;.'  1  the  original 
should  be  obtained  (except  when  a  copy  is  admissible)  and  that  tli- 
genuineness  should  be  verified;    (5)    that  any   witnesses  called   are 


90  MAX  TAT.   FOR    COURTS-  MARTIAL. 

Qy  compefc  ■    e;    (6)   thai   the  examination  of 

irly  and  properly  conduct  i  tish  Manual.) 

•  will  always  be  had  to  the  paragraph  of  the 
manual  thai   sets  out   the  gist  of  the  offenses  charged    (see  Chap. 
XVII),  and  this  wil]  be  read  to  the  court  in  each  case  by  the  ji 
advocate  immediately  after  the  accused  has  pleaded  to  the  charges 
fications. 
It  will  1  •  i  iate  in  all  cases — and  in  an  important  or  compli- 

cated case  it  will  be  required  by  the  court — for  the  judge  advocate, 
oceeding  with  the  introduction  of  evidence,  to  make  a  brief 
:nent  of  "  the  nature  of  the  issues  to  be  tried  and  what  he  i  xpects 
to  prove"  (1  Thompson  on  Trials.  246)  to  sustain  them.     Counsel 
1  may  also  make  an  opening  statement  as  to  his  de- 
■.  either  just   following  the  statement  of  the  judge   advocate 
or  just  after  the  judge  advocate  has  rested  his  case,  as  counsel  deems 
i  etter,  but  the  latter  course  is  customary.    It  would  be  highly  repre- 
hensible for  either  judge  advocate  or  counsel  to  get  before  the  court 
in  such  opening  statement,  as  a  probable  means  of  influencing  its 
judgment,  matters  as  to  which  no  evidence  is  intrude. 1  to  be  offered 
or  as  to  which  it  is  known  that  the  evidence  to  be  offered  is  clearly 
inadmissible,  just  as  it  would  be  so  reprehensible  for  either  to  suggest 
for  the  same  purpose,  by  questions  propounded  to  a  witness,  matters 
known  not  to  exist  or  that  the  rules  of  evidence  clearly  make  inad- 
ible. 
198.  Rules  of  evidence  for  courts-inartial. — Prior  to  the  act  of  August 
29,1916  (A.W.,38),  courts-martial  followed  in  general  the  rules  of 
evidence,  including  the  rules  as  to  competency  of  witnesses  to  testify, 
that  are  applied  by  Federal  courts  in  criminal  cases.    These  consisted 

be  rules  of  the  common  law  as  they  existed  in  the  several  St 
at  the  adoption  of  the  Federal  Constitution-  in  1789,  as  modified 
a   time  to  time  by  subsequent  acts  of  Congress.     But  courts- 
martial  were,  however,  not  required  by  express  statute  to  follow  these 
rules,  and  have  always  been  allowed  to  pursue  a  more  liberal  course 
in  regard  to  the  admission  of  testimony  than   do,  habitually,  the 
civil  tribunals.    Their  purpose  was  to  do  justice;  and  if  the  effect 
i   technical   rule  was  found  to  be  to  exclude  material   facts  or 
otherwise  obstruct  a  full  investigation,  it  was  deemed  that  the  rule 
and  should  be  departed  from.    Proper  occa  ever,  for 

departure  s  were  regarded  as  exceptional  and  unfrequent.  (Win- 
p,473.)  It  was  believed  that  "courts-martial  had  much  better 
Brr  on  the  side  of  liberality  toward  a  prisoner  than,  by  endeavoring 
to  solve  nice  and  technical  refinements  of  the  laws  of  evidence,  assume 
the  risk  of  injuriously  denying  him  a  proper  latitude  for  defense." 
(G.  C.  M.  O.  32,  L872;  see  3  Greenleaf,  sees.  469,  476.)  And  now, 
by  the  pro  the  act  of  August  29,  1916  (38  A.  W.) : 


EVID!  97 

The  President  may,  by  regulations  which  he  may  modify  from 
time  to  time,  proscribe  the  procedure,  including  modes  of  proof,  in 
cases  before  courts-martial,  courts  of  inquiry,  military  commissions, 
and  other  military  tribunals:  Provided,  That  nothing  contrary  to  or 
inconsistent  with  these  articles  shall  be  so  prescribed:  Provided  fur- 
th,  /■.  That  all  rules  made  in  pursuance  of  this  article  shall  be  laid 
before  the  Congress  annually. 

The  modes  of  proof,  therefore,  including  the  rules  of  admissibility 
for  witnesses  and  other  evidence,  are  now  by  express  congressional, 
enactment  placed  under  the  authority  of  Executive  regulation;  and 
the  rules  laid  down  in  this  Manual  have  the  force  of  such  regula- 
tion. They  therefore  form  the  only  binding  rules,  except  such  rules 
of  evidence  as  are  expressly  prescribed  (1)  in  the  Articles  of  War; 
(2)  in  the  Federal  Constitution;  and  (3)  in  such  Federal  statutes 
as  expressly  mention  courts-martial. 

199.  Rules,  where  found. — The  common-law  rules,  with  their  legis- 
lative modifications,  will  be  found  in  the  various  textbooks  on  the 
subject  of  evidence.  These  rules  have  been  the  subject  of  much  in- 
terpretation by  the  courts,  which  will  be  found  in  the  published  de- 
cisions of  such  courts.  While  resort  to  textbooks  and  decisions  will 
sometimes  be  necessary  in  the  trial  of  an  especially  difficult  case,  it 
is  the  purpose  of  this  chapter  to  state  the  rules  of  evidence  applicable 
to  trials  by  courts-martial  in  sufficient  fullness  to  cover  the  field  in 
practically  all  cases.  Where  the  rule  herein  laid  down  is  clear  it 
should  be  taken  as  law  (subject  to  the  discretionary  relaxation  noted 
in  par.  108) ,  unless  modified  by  Federal  statute  or  some  decision  of  the 
era]  courts  made  since  the  date  of  the  publication  of  the  Manual. 

Where,  in  the  preparation  of  a  case,  the  judge  advocate  or  counsel 
finds  that  the  rules  laid  down  in  this  chapter  are  not  sufficiently 
specific  clearly  to  settle  a  specially  important  question  as  to  the  com- 
I  n  tency  of  a  witness  to  testify  or  as  to  the  admissibility  of  evidence 
intended  to  be  introduced  or  the  exclusion  of  such  as  the  nature  of  the 
or  other  information  indicates  will  be  offered,  he  should  secure 
in  advance  of  the  trial  and  have  with  him  in  court  authorities  to 
sustain  his  contentions  for  such  admission  or  exclusion. 

But  it  should  be  kept  in  mind  that  the  use  of  such  authorities  is 
merely  to  inform  the  court  of  the  reason  of  a  rule  or  the  good  sense 
and  fairness  of  a  proposed  ruling,  and  not  to  control  the  decision  of 
the  court  with  binding  effect.  This  caution  rests  on  the  two  grounds 
of  principle:  First,  because  the  State  decisions  and  statutes,  and  the 
writers  of  treatises,  never  have  had  any  binding  effect  on  courts- 
martial,  the  Federal  statutes  and  decisions  being  tin'  only  ones  that 
are  entitled  to  such  effect;  and,  secondly,  because  since  the  Federal 
statute  of  August  29,  I.'IO  (A.  W..  38),  the  modes  of  proof  in  courts- 
L8 8 


98  MANUAL   FOB   COURTS-MARTIAL, 

martial  are  governed  by  regulations  issued  by  presidential  order,  as 
explained  in  par.  198. 

200.  Rules  of  evidence  to  be  applied  irrespective  of  rank. — The  rules  of 
evidence  should  be  applied  by  military  courts  Irrespective  of  the 
rank  of  the  person  to  be  affected.  Thus  a  witness  for  the  prosecu- 
tion, whatever  be  his  rank  or  office,  may  always  he  asked  on  cross- 
examination  whether  he  has  not  expressed  animosity  toward  the 
accused,  as  well  as  whether  he  has  not  on  a  previous  occasion  made 
a  statement  contradictory  to  or  materially  different  from  that  em- 
braced  In  his  testimony.  Such  questions  are  admissible  by  the  estab- 
lished law  of  evidence  and  imply  no  disrespect  to  the  witness,  nor 
can  the  witness  properly  decline  to  answer  them  on  the  ground  that 
it  is  disrespectful  to  him  thus  to  attempt  to  discredit  him.  (Digest, 
p.  529,  XI,  A,  a.) 

201.  Protection  cf  witnesses. — It  is  the  duty  of  the  court  to  protect 
every  witness  from  irrelevant,  insulting,  or  improper  questions;  from 
harsh  or  insulting  treatment;  and  from  unnecessary  inquiry  into  his 
private  affairs.  The  court  must  forbid  any  question  which  appears 
to  be  intended  merely  to  insult  or  annoy  a  witness,  or  which,  though 

:•  in  itself,  appears  to  be  needlessly  offensive  in  form.     (Pro- 
posed codification,  X.  Y.  Rules.) 

202.  Evidence  must  be  material  and  relevant. — Evidence  to  be  admis- 
sible must  be  not  only  material  but  relevant  to  the  issues  in  the  case. 
Evidence  is  not  material  when  the  fact  which  it  aims  to  prove  is 
not  a  part  of  the  issues  in  the  case.  Evidence  is  not  relevant  when, 
though  the  fact  which  it  aims  to  prove  is  material,  yet  the  evidence 
itself  is  too  remote  or  far-fetched  to  have  any  probative  value  for 
that  purpose.  Where  evidence  is  apparently  irrelevant  it  may,  how- 
ever, be  admitted  provisionally  upon  a  statement  of  the  judge  advo- 
cate or  counsel  that  other  facts  to  be  proved  will  show  its  relevancy, 
but  the  court  should  afterwards  exclude  it,  if  its  relevancy  is  not 
shown.  Indirect  evidence  is  known  as  circumstantial  evidence,  and 
signilies  merely  any  and  all  evidence  which  is  not  testimonial;  i.  e., 
the  assertion  of  a  witness  or  other  person.  For  example,  on  a  charge 
of  larceny  of  a  wallet,  the  statement  of  a  witness  that  he  saw  the  ac- 
<  used  take  the  wallet  from  the  owner's  overcoat  is  testimonial  evi- 
dence; the  finding  of  the  wallet  hidden  in  the  blanket  belonging  to 
the  accused  is  circumstantial  evidence.  Obviously,  a  fact  constituting 
circumstantial  evidence  must  itself  usually  be  proved  in  its  turn  by 
testimonial  evidence;  lor  example,  the  finding  of  the  wallet  as  indi- 
cated above  would  be  evidenced  by  a  sergeant's  testimoiw  that  lie 
searched  the  accused's  blanket  and  found  the  wallet. 

Testimonial  evidence  is  thus  classed  by  itself,  because  the  weight 
to  be  given  t<»  teed  imony  is  subject  to  a  group  of  considerations  which 
affect  all  human  assertions  alike. 


EVIDENCE.  '.>9 

Section-  II. 

CIRCUMSTANTIAL  EVIDENCE. 

203.  Circumstantial  evidence. — Circumstantial  evidence  is  not  resorted 
to  because  there  is  an  absence  of  direct  or  testimonial  evidence.  Ii  i- 
introduced  even  when  there  is  direct  evidence;  nor  is  it  an  inferior 
substitute  for  direct  evidence.  Circumstantial  evidence  may  furnish 
a  safe  and  satisfactory  ground  for  belief,  while  on  the  other  h 
direct  or  testimonial  evidence  may  leave  the  court  in  doubt.  The 
proper  effect  of  circumstantial  as  compared  with  direct  evidence  lias 
been  stated  as  follows: 

When  circumstances  connect  themselves  closely  with  each  other5 
when  they  form  a  large  and  strong  body  so  as  to  carry  conviction  tc 
the  minds  of  a  jury,  it  may  be  proof  of  a  more  satisfactory  sort  than 
that  which  is  direct.  In  some  lamentable  instances  it  has  been  known 
that  a  short  story  has  been  got  by  heart  by  two  or  three  witnesses ; 
they  have  been  consistent  with  themselves,  they  have  been  consistent 
with  each  other,  swearing  positively  to  a  fact,  which  fact  has  turned 
out  afterwards  not  to  be  true.  It  is  almost  impossible  for  a  variety 
of  witnesses,  speaking  to  a  variety  of  circumstances,  so  to  concoct  a 
story  as  to  impose  upon  a  jury  by  a  fabrication  of  that  sort,  so  that 
where  it  is  cogent,  strong,  and  powerful,  where  the  witnesses  do  not 
contradict  each  other  or  do  not  contradict  themselves,  it  may  be 
evidence  more  satisfactory  than  even  direct  evidence,  and  there  are 
more  instances  than  one  where  that  has  been  the  case.  ("Wigmore, 
2G.)  In  a  case  depending  upon  circumstantial  evidence  the  court,  in 
order  to  convict,  must  find  the  circumstances  to  be  satisfactorily 
proved  as  facts,  and  must  also  find  that  those  facts  clearly  and  un- 
equivocally imply  the  guilt  of  the  accused  and  can  not  reasonably 
be  reconciled  with  any  hypothesis  of  his  innocence.  (Davis,  p.  265.) 
204.  Illustration  of  difference  between  good  and  bad  circumstantial  evi- 
dence.— The  accused  is  charged  with  stealing  clothes  from  the  locker 
of  a  comrade.  The  following  circumstances  are  not  admissible  as 
circumstantial  evidence: 

(1)  The  accused  is  very  much  disliked  by  other  members  of  hi? 
company. 

i  J  |  A  number  of  thefts  from  comrades  have  taken  place  in  the 
company,  and  the  general  belief  in  the  company  is  that  he  was  con- 
nected with  them. 

(3)  He  was  tried  once  before  for  larceny  of  clothes  from  a  com- 
rade and  was  convicted. 

(0   Ho  is  suspected  of  being  a  deserter  from  a  foreign  army. 

(5)  lie  belongs  to  a  race  or  enlisted  in  a  locality  that  does  no* 
entertain  very  strict  notions  of  right  and  wrong  as  to  the  manner  o^r 
acquiring  possession  of  property. 


100  MANUAL   FOR   COURTS-MARTIAL. 

But  the  following  scries  of  circumstances  should  be  admitted  in 
evidei 

(1 )  The  clothes  were  taken  while  the  company  was  at  drill,  and 
there  was  no  one  known  to  have  been  in  the  room  where  the  locker 
was. 

(2)  The  accused  was  not  at  drill,  but  was  detailed  as  kitchen  police 
that  day. 

(3)  He  was  absent  from  his  duty  as  kitchen  police  a  short  while 
during  the  time  when  the  clothes  disappeared. 

( )ne  of  the  articles  stolen  was  found  in  the  locker  of  the 
accused. 

( 5  I  The  accused  was  known  to  be  without  money  the  day  before 
the  larceny,  and  that  evening  left  the  post  with  a  bundle  under  his 
arm  and  was  seen  to  enter  a  certain  house  and  the  same  night  had 
money  in  his  possession. 

(6)  Upon  the  house  being  searched  next  day  most  of  the  missing 
clothes  were  found  there. 

(7)  The  person  found  in  the  house  identified  the  accused  as  the 
one  from  whom  he  had  purchased  the  missing  clothes. 

205.  Evidence  of  character  of  accused  and  of  his  services. — In  trials 
by  court-martial  the  good  character  of  the  accused,  as  evidenced  by 
his  reputation,  may  become  of  importance  in  four  classes  of  cases0, 
First,  when  the  evidence  of  guilt  is  not  strong  evidence  of  the  good 
reputation  of  the  accused  will  strengthen  the  presumption  of  inno- 
cence; second,  when  the  punishment  is  discretionary  such  evidence 
may  be  introduced  with  a  view  to  inducing  the  court  to  impose  a 
milder  sentence  in  the  case  of  a  plea  of  guilty  or  a  conviction;  third, 
when  the  punishment  is  mandatory  such  evidence  maj^  be  introduced 
with  a  view  to  inducing  the  court  to  recommend  clemency;  fourth,  in 
any  case  such  evidence  may  be  introduced  with  a  view  to  inducing  the 
reviewing  authority  to  extend  clemency.  An  accused  may  also  intro- 
duce evidence  of  his  character  and  services.  In  any  such  case,  if 
the  accused  offers  evidence  as  to  character,  record,  or  services,  as 
shown  by  statement  of  service  or  otherwise,  the  prosecution  may  re- 
but -well  evidence.  (See  1,  2,  4,  and  5,  par.  204,  p.  f>9.  for  illustrations 
of  what  may  uot  be  used  in  rebuttal  to  evidence  bad  character.)  Evi- 
dence as  to  the  bad  character  of  an  accused,  offered  by  the  prosecution 
or  at  the*solicitation  of  the  court  prior  to  the  introduction  by  the 
accused  of  evidence  as  to  his  good  character,  is  inadmissible.  Not 
even  the  fact  thai  before  the  introduction  of  such  evidence  the  ac- 
cused consented  to  its  introduction  will  make  it  any  the  less  irregular. 
If,  however,  the  accused  takes  the  witness  stand  his  character  for 
veracity  as  a  witness  may  be  attacked  as  in  the  case  of  any  other 
w  i  1 1 ,  • 

206.  Motive,  etc. — Motive  or  lack  of  motive  as  impelling  the  accused 
toward  or  against  the  act  charged  or  thai  class  of  acts  often  throws 


EVIDENCE.  •  101 

a  flood  of  light  upon  the  issue  as  to  guilt  or  innocence,  So  important 
has  it  been  deemed  for  the  ascertainment  of  truth  that  it  has  invoked 
exceptions  to  the  character  rule.  Thus  the  doing  of  another  crim- 
inal act,  not  a  part  of  the  issue,  while  not  admissible  as  evidence 
of  the  doing  of  the  criminal  act  charged,  or  of  the  bad  moral  char- 
acter of  the  accused,  is  admissible  when  offered  for  the  specific  pur- 
pose of  evidencing  design,  plan,  motive,  identity,  knowledge,  or 
other  relevant  facts  distinct  from  moral  character.  (Wigmore's  P. 
C.  64,  65.) 

Illustrations. —  (1)  In  a  trial  for  arson  of  a  barn,  the  defendant's 
attempt  on  two  former  occasions  to  burn  houses  in  other  parts  of  the 
town  is  not  admissible,  unless  for  the  purpose  of  evidencing  intent 
or  motive. 

(2)  On  a  charge  of  murder  by  poison,  the  defendant's  murders  of 
other  members  of  the  same  family  by  poison,  if  admissible  to  show 
motive  or  intent,  are  not  excluded  because  they  are  criminal  acts 
and  might  cause  undue  prejudice.     (AYigmore's  P.  C.  64,  65.) 

(3)  The  declarations,  threats— especially  his  other  similar  criminal 
acts — of  the  accused  are  admissible. 

(4)  When  the  accused  is  charged  with  having  knowingly  com- 
mitted an  offense  or  having  knowledge  of  the  essence  of  the  offense, 
prior  similar  acts  that  would  probably  have  led  to  some  knowledge 
or  warning  would  be  admissible. 

Sectiox  III. 

TESTIMONIAL    EVIDENCE. 

207.  Testimonial  evidence. — Testimonial  evidence  is  the  statement  of 
some  person  offered  as  evidencing  the  fact  asserted  by  it.  For  ex- 
ample, a  statement  that  a  rifle  was  discharged  at  a  certain  hour  and 
place  is  testimonial  evidence  that  it  was  so  discharged. 

Such  statements  may  be  made  either  in  court  or  out  of  court.  If 
made  in  court  as  a  witness,  then  the  witness  must  be  "  competent." 
1 1  made  out  of  court,  then  even  if  he  is  competent,  the  statement  is 
not  admissible,  because  the  hearsay  rule  forbids. 

The  competency  of  the  witness  is  therefore  the  important  thing 
to  determine  before  admitting  testimonial  evidence. 

208.  Competency  rule  in  general. — The  modern  tendency,  as  evidenced 
to  a  great  extent  by  statutes  of  different  States,  and  to  a  limited 

ut  by  Federal  statutes,  is  to  recognize  practically  no  grounds  for 
incompetency,  but  to  admit  the  material  and  relevant  testimony  of  a 
witness  offered  by  either  side  and  leave  his  credit  to  be  estimated  ac- 
cording to  all  the  circumstances. 

Among  the  few  common-law  grounds  of  incompetency  (sec  par. 
]'.»- )  now  remaining  in  some  States,  but  no  Ion--.  :•  to  be  recognized  in 


102  MAI.   FOR  COURTS-MARTIAL. 

courts-martial,  are  (1)  conviction  of  felony  and  of  misdemeanors 
involving  dishonesty  ("crimen  falsi"),  especially  perjury;  (2)  re- 
lationship, as  wife  or  husband  of  the  accused.  (See  pars.  211  and 
813.) 

209.  Competency  of  witness. — The  competency  of  a  witness  depends 
upon  several  elements,  which  may  be  divided  thus:  (1)  His  general 
moral  and  mental  capacity;  (2)  his  special  ixpertness  in  subjects  on 
which  expertness  is  required;  (3)  his  knowledge  of  the  specific  facts 
on  which  he  testifies. 

210.  General  capacity  of  witness. — The  general  capacity  of  an  adult 
witness  is  always  presumed;  i.  e.,  the  party  disputing  it  must  always 
prove  to  the  court  the  specific  ground  of  incapacity  or  else  the  witness 
should  be  allowed  to  testify.    The  admissibility  of  children  as  wit- 
is  not  regulated  by  their  age,  but  by  their  apparent  sense  and 

understanding.  Children,  therefore,  of  any  age,  may  be  examined,  if 
capable  of  distinguishing  between  good  and  evil,  but  always  under 
oath. 

There  are  very  few  grounds  of  incapacity  to-day  recognized  by  the 
law. 

211.  Moral  incapacity  of  witness. — Moral  incapacity  was  recognized 
in  the  common-law  rule  that  rendered  incompetent  as  a  witness  any 
person  convicted  of  treason,  felony,  or  the  crimen  falsi. 

But  this  incapacity  has  been  abolished  in  almost  all  States,  except 
that  several  retain  it  with  a  restriction  to  convictions  for  perjury. 
In  courts-martial,  conviction  of  any  offense  does  not  disqualify  a 
witness.  But  it  may,  of  course,  be  shown  to  diminish  his  credit. 
(See  Credibility  of  witnesses,  Sec.  VI,  post.) 

212.  Mental  incapacity  of  witness. — Mental  incapacity  is  a  disquali- 
fication, but  only  to  a  limited  extent,  as  follows:  Insanity  or  intoxi- 
cation may  disqualify,  but  only  to  the  extent  to  which  they  affect  the 
subject  of  the  testimony.  For  example,  a  religious  hallucination  as 
to  angels  saving  a  man  from  bullets  does  not  disqualify  the  person 
from  testifying  as  to  the  time  of  lighting  a  camp  fire  or  the  persons  on 
duty  at  a  certain  post.  Intoxication  would  disqualify  only  if  it  was 
so  complete  as  to  render  the  person  senseless  at  the  time  of  the  event 
to  be  t  est  i  lied  to. 

213.  Interest  or  bias. — Interest  or  bias  does  not  disqualify ;  i.  e.,  the 
fact  that  a  person  owes  a  party  money  or  has  a  property  interest  with 
or  against  a  party,  does  not  disqualify  him  from  testifying  for  or 
against  that  party.  A  person  who  is  a  relative  or  an  avowed  enemy 
of  the  accused  is  not  disqualified  from  testifying  for  or  against  the 
accused.    The  weight  of  such  testimony  when  admitted  is  a  different 

matter.      (Sec  Credibility  <>1*  witnesses.  Sec.  VI.  post.) 

Marital  relationship  was  a  disqualification  at  common  law.  Except 
in  certain  cases,  husband  or   wife   could   not  testify  either   for  or 


EV1D1  103 

against  one  another.    This  rule  has  been  abolished  in  most  Sta 
In  courts-martial  the  rule  is  as  follows: 

(1)  Wife  or  husband  of  an  accused  may  testify  on  behalf  of  the 

accused  without  restriction. 

(2)  Wife  or  husband  of  an  accused  may  not  be  called  to  I 

8t  the  accused  without  the  consent  of  bath  accused  and  witn 
unless  on  a  charge  of  an  offense  committed  by  the  ace:..-    I  i 
witness.     (See  par.  228.) 

(3)  Wife  or  husband  of  any  person  may  not  testify  to  confidential 
communications  of  the  other,  unless  the  other  give  consent. 

The  last  two  rules  are  rules  of  privilege,  and  are  more  fully  stated 
under  «  Privilege."      {I '.  21.  C.  21.  No.  40 

214.  Where  accused  is  witness. — It  was  provided  by  act  of  Cong] 
of  March  lG,  1878  (20  Stat.,  30),  that  in  trials  by  courts-martial  and 
courts  <>f  inquiry  a-  well  as  by  United  States  courts  and  Territorial 
courts,  the  accused  "shall  at  his  own  request,  but  not  otherwise,  be  a 
competent  witness,"  and  that  "his  failure  to  make  such  request  shall 
not  create  any  presumption  against  him."  An  accused  person  thus 
may,  at  his  option,  take  the  stand  as  a  witness,  but  in  so  doing  ha 
occupies  no  exceptional  status  and  becomes  subject  to  cross-examina- 
tion like  any  other  witness.  The  same  rules  as  to  the  admissibility 
of  evidence,  privilege  of  the  witness,  impeaching  of  his  credit,  etc., 
will  apply  to  him  as  to  any  other  witness,  and  the  only  noticeable 
difference  between  his  examination  and  that  of  other  witnesses  will 
be  that  he  will  in  general,  naturally  and  properly,  be  exposed  to  a 
more  searching  cross-examination.  (Winthrop,  508.)  So  far  as  the 
latitude  of  the  cross-examination  is  discretionary  with  the  court,  a 
greater  latitude  may  properly  be  allowed  in  his  cross-examination 
than  in  that  of  other  witnesses  (id.,  515).  When  the  accused  testifies 
in  denial  or  explanation  of  any  offense,  the  scope  of  his  direct  exami- 
nation is  considered  to  be  the  whole  subject  of  his  guilt  or  innocence 
of  that  offense,  and  any  fact  relevant  to  the  issue  of  his  guilt,  or  rele- 
vant to  his  credit  as  a  witness,  is  properly  the  subject  of  cross- 
examination,  and  if  he  fails  to  deny  or  explain  act-  of  an  incriminat- 
ing nature  that  the  evidence  of  the  prosecution  tends  to  establish 
against  him.  such  failure  may  not  only  be  commented  upon  by  coun- 
sel, but  may  be  considered  by  the  court,  with  all  the  other  circum- 
stance-, in  reaching  their  conclusions  as  to  his  guilt  or  uonoo 

ti  v.  TJ.  S.,  242  T.  S.,  170, 103)  ;  where,  however,  an  accused 
i-  on  trial  for  a  number  of  offenses,  and,  taking  the  .-land  in  his  own 
defense,  testifies  a-  to  one  or  more  of  them  only,  he  can  not  be  cross- 
examined  as  to  the  others,  and  no  comment  can  be  made  or  Lnfer< 
drawn  from  hi-  failure  to  testify  as  to  the  other.-*,     (t  .  21.  C .  21 ., 

No.  ;.) 

215.  Procedure  where  accused  fails  to  testify  or  make  a  statement.-  - 
In  each  case  tried  by  a  general  court-martial  in  which  the 

not  testify  or  make  any  Statement  in  his  own  behalf,  it  shall  ap- 


104  MANUAL    FOB    COT7BTS-MABTTAL. 

pear  on  record  that  the  president  of  the  court  explained  to  the  ac- 
cused  thai  he  may  testify  in  his  own  behalf  if  he  so  desire,  or  may 
make  an  unsworn  statement  to  the  court  in  denial,  in  explanation,  or 
in  extenuation  of  the  offense  with  which  he  stands  charged.  The 
explanation  by  the  president  and  the  reply  of  the  accused  thereto 
shall  appear  upon  the  record  of  trial.  The  same  rule  will  apply  in 
tried  by  special  court-martial  when  the  evidence  heard  is  made 

of  record. 

216.  Effect  of  turning  state's  evidence. — The  fact  that  an  accomplice 
I  urns  stair's  evidence  does  not  make  him  immune  from  trial,  unless 
immunity  has  been  promised  him  by  the  authority  competent  to 
order  his  trial.  But,  if  an  accomplice  goes  on  the  stand  and  makes 
a  full  and  frank  statement  of  the  circumstances  of  the  offense,  it  is 
customary  to  pardon  his  offense,  or  impose  upon  him  a  milder  pun- 
ishment than  upon  his  accomplices. 

217.  Competency  of  accused  when  testifying  against  an  accomplice.— 
The  rule  of  the  common  law  was  that  an  accused  person  was  in- 
competent to  testify  for  or  against  his  accomplices.  This  rule  is 
nullified  by  the  act  making  the  accused  a  competent  witness  when 
testi  lying  at  his  own  request.  The  rule  now  is  that  when  an  accused 
chooses  to  testify  he  may  do  so,  and  that  it  does  not  matter  whether 
his  testimony  is"  for  or  against  himself  or  for  or  against  his  code- 

int.     ( Wolf  son  v.  U.  S.,  101  Fed.  Eep.,  436.) 

218.  Expert  capacity.— On  most  matters,  the  ordinary  experience 
of  any  adult  qualifies  him  to  observe  and  testify.     Hence,  all  persons 

►rdinarily  qualified  to  testify  on  ordinary  matter.  But,  when  the 
subject  is  one  upon  which  special  experience  is  required,  it  will  not  be 
presumed  that  a  witness  possesses  such  special  experience,  for.  ordi- 
narily he  does  not.  Hence,  a  witness  called  upon  such  a  subject  must 
[lawn  to  possess  such  special  experience;  he  is  therefore  called 
expert''  on  that  subject.  A  person  may  be  an  expert  on  one 
subject,  but  not  on  another.  Hence,  whenever  such  a  topic  calls  for 
testimony,  the  witness'  special  experience  in  it  must  first  be  shown. 
Whether  a  piece  of  leather  has  been  recently  tanned  :  whether  a  stain 
is  human  blood  or  animal  blood,  are  instances  of  topics  which  might 
well  require  experts,  if  important  to  the  issue. 

In  applying  this  rule,  pedantry  would  be  out  of  place.  Experts 
on  all  subjects  are  seldom  within  reach  of  a  court-martial,  and  liber- 
ality of  application  is  a  necessity.  Good  sense  and  ordinary  caution 
will  del  ermine  whether  an  expert  is  needful  for  accurate  discovery 
he  truth.  For  example,  an  expert  in  alcohol  would  hardly  be 
'  ,i  to  testify  to  whether  the  contents  of  a  certain  bottle  were  ^'A'- 
ficiently  alcoholic  to  be  intoxicating,  but  in  a  homicide  case,  where, 
the  cause  of  death  was  disputed,  obviously  a  medical  man's  testimony 
should  be  secured. 

219.  Insanity  of  accused. — Where  the  existence  of  mental  disease  or 
derangement  on  the  part  of  the  accused,  either  at  the  time  of  the 
trial  or  at  the  time  of  the  commission  of  the  alleged  wrongful  act, 


EVIDENCE.  105 

becomes  an  issue  in  the  trial  of  the  case,  the  court  -will  stop  its  pro- 
ceedings and  immediately  report  the  fact  to  the  convening  au- 
thority. The  convening  authority  will  forthwith  order  a  board  of 
medical  officers  to  take  the  accused  under  their  personal  observation 
for  such  length  of  time  as  may  be  sufficient  to  determine  the  nature 
and  extent  of  the  disease  or  derangement,  if  any,  and  to  extend 
their  examination,  in  a  case  of  any  doubt,  to  written  inquiries  di- 
rected to  probation  officers,  physicians,  clergymen,  school  and  prison 
authorities,  mayors,  postmasters,  etc.,  for  the  purpose  of  fully  de- 
veloping, from  any  trustworthy  sources,  the  question  as  to  any  men- 
tal, moral,  or  physical  defects  of  childhood,  or  later,  that  may  throw 
light  upon  the  question  as  to  whether  the  accused  at  the  time  of 
the  wrongful  act  had  the  necessary  criminal  mind  to  commit  the 
wrongful  act  charged.  Where  the  information  from  any  source  in- 
dicates the  absence  of  insanity,  the  accused  will  be  entitled  to  cross- 
examine  the  party  giving  such  information.  Such  information  and 
its  source  will  be  brought  to  the  attention  of  the  judge  advocate, 
who  will  confer  with  the  counsel  for  the  accused  for  the  purpose  of 
securing  the  presence  of  the  informant  for  cross-examination  before 
the  court,  or  his  deposition  if  he  is  not  available  to  testify. 

The  medical  board  will  make  a  written  circumstantial  report  as 
to  the  character  of  their  observations,  attach  thereto  such  written 
evidence  as  may  have  been  considered,  and  state  their  opinion  as  a 
board,  or  individually  if  there  is  any  difference  of  opinion,  as  to 
whether  or  not  the  accused  had  at  the  time  of  their  report  sufficient 
mental  capacity  to  justify  his  being  brought  to  trial,  or  had  at  the 
time  of  the  wrongful  act  the  necessary  criminal  mind  to  commit 
the  wrongful  act  charged,  and  will  further  state  their  opinion,  if 
it.  is  found  that  the  accused  did  not  have  the  necessary  criminal  mind 
to  commit  the  wrongful  act  charged,  as  to  whether  the  accused 
would  be  now  a  menace  to  the  public  safety. 

The  medical  report  as  a  whole  will  be  admissible  in  evidence, 
and  when  admitted  the  court  will  have  called  as  a  witness  for  the 
courl  at  least  one  of  the  members  of  the  board  to  be  thoroughly 
examined,  as  if  on  cross-examination,  by  counsel  for  the  accused,  the 
! ■■  advocate  or  the  court,  as  to  any  feature  of  the  report,  and  on 
request  of  the  accused  the  remaining  members  of  the  board  shall 
be  called  for  cross-examination. 

If  insanity  is  indicated  to  cither  judge  advocate  or  counsel  for 
accused  prior  to  the  assembling  of  the  court  it  would  be  appropriate 
for  the  judge  advocate,  at  request  of  counsel  for  accused  or  of  his 
own  motion,  to  report  such  indications  to  the  reviewing  authority 
with  the  idea  of  obviating  the  necessity  for  the  assembling  of  the 
court  until  a  medical  board  had  been  convened  and  reported  as 
outlined  1 1  i 

In  any  case  where  the  convening  authority  accept-  the  finding  ot 
the  board  on  the  question  as  to  necessary  criminal  mind  and  decides 


106  MAM  Al.    FOB    I  OXJB.1  3-MAB1  LAL. 

to  withdraw  the  case  from  consideration  of  the  court-martial  it 
would  accord  with  modern  ideas  of  justice,  if  any  doubt  whatsoever 
ted  as  to  the  accused  having  committed  the  wrongful  ad  charg<  d 
against  him,  to  grant,  upon  request  of  counsel  or  a  meml 
accused'e  family,  ;i  trial  upon  the  charge  with  a  view  to  relieving  him, 
though  Insane,  of  the  stigma  attached  to  the  accusation.  In  such 
instance  the  case  should  be  proceeded  with,  and  if  the  court  deter- 
mines that  the  accused  committed  the  wrongful  act  charged  but  was 
insane  at  the  time  oi  its  commission  or  at  the  time  of  trial  the  find- 
ings will  be  to  that  effect.  And  in  any  case  where  a  finding  by  the 
court  of  "not  guilty"  would  be  based  upon  lack  of  criminal  mind, 
the  findings  should  be  in  accordance  with  tho.se  prescribed  by  the 
ling  sentence. 

220.  Testimonial  knowledge. — A  prime  qualification  in  a  witnes 
that  he  should  speak  only  of  what  he  has  observed  with  his  senses, 
or  had  an  opportunity  to  observe.  E.  g.,  a  witness  on  sentry  pos 
night  might  testify  that  he  heard  three  shots  and  saw  two  per- 
sons running  in  tin'  distance,  but  should  stop  with  telling  what  he 
heard  and  saw.  To  proceed  further  and  slate  that  the  shot.-,  killed 
a  mule  ami  that  the  accused  was  one  of  the  persons  running  may  in- 
volve beliefs  of  his  that  are  based  on  rumors  and  gossip  picked  up 
afterwards,  beliefs  for  which  he  has  no  status  as  a  witness.  An  im- 
portant feature  of  correct  trial  methods  is  to  summon  every  person 
who  saw  or  heard  anything  relevant,  but  to  require  every  such  per- 
son to  limit  his  testimony  to  what  he  himself  saw  or  heard.  In  this 
way  the  court  arrives  (if  the  testimony  be  credited)  at  the  basic  cir- 
cumstances on  which  the  proof  must  be  built  tip. 

This  rule  also  has.  of  course,  its  liberal  side,  based  on  practical 
experience.  For  example,  if  the  issue  be  as  to  a  stolen  case  of  soap, 
and  the  quartermaster  has  an  invoice  showing  400  cases  received,  and 
he  is  asked  how  many  are  remaining  in  stock,  it  is  not  necessary  that 
he  should  personally  count  every  case;  it  might  suffice  if  he  ticked 
off  39  large  bales  of  10  cases,  each  intact,  and  then  found  a  bale  of 
9  with  1  missing. 

This  fundamental  principle  of  requiring  personal  knowledge  (or 
opportunity  to  observe)  leads  up  to  the  hearsay  rule,  applicable  to 
statements  made  by  persons  not  in  court.  The  hearsay  rule  signifies 
that  when  a  witness  testifies  not  to  what  he  himself  saw  or  heard 
but  to  what  he  heard  some  one  else  say,  his  testimony  on  that  point, 
shall  be  rejected,  and  the  person  who  said  it  shall  In-  produced  in 

the  COUrt  to  testify,  the  object  being  to  get  at  the  first-hand  source  of 
knowledge.  Experience  shows  again  and  again  that  when  that  other 
person  is  produced  either  what  he  actually  said  was  something  very 
different  or  else  when  cross-examined  he  turns  out  to  have  only  a 
scanty  trustworthiness.  For  example,  if  the  sentry  in  the  above  in- 
stance testifies  that  he  did  not  identify  the  person  running,  but  after- 
wards in  barracks  Sergt.  S  said  that  it  was  X.  the  court  would  ex- 


Evro  !■:>.•  107 

elude  what  Sergt.  S  said,  would  summon  S  fco  testify  in  poison,  and 
then  it  might  appear  that  all  Sergt.  S  knows  aboul  it  is  that  X  came 
into  barracks  halt'  an  hour  later  looking  as  if  he  were  out  of  breath, 
and  this  might  be  connected  up  with  an  errand  on  which  X  had  B 
sent,  bty  testimony  of  his  captain.  The  hearsay  ride,  therefore,  is 
a  corollary  ol'  the  principle  that  a  witness  must    ;  rom  what 

he  has  himself  seen  and  heard,  and  not  from  what  a.    fther  person 
has  told  him  or  written  to  him. 

221.  Hearsay  evidence. — The  hearsay  rule  is  subject  to  some  well- 
established  exceptions:  most  of  them  are  based  on  the  general  prin- 
ciple that  there  is  an  unavoidable  necessity  for  using  die  hearsay, 
because  the  person  is  deceased  or  for  some  other  reason  can  not  be 
secured  as  a  witness.  These  exceptions  are  now  settled,  however,  into 
fixed  rules,  irrespective  of  the  above  principle. 

Nevertheless,  in  courts-martial  the  liberal  principle,  now  adopted 
in  one  or  two  States,  may  well  be  followed  in  extreme  cases,  viz, 
wherever  the  person,  whose  statement  is  desired  to  be  off ered  (whether 
written  or  oral),  is  deceased  at  the  time  of  the  trial,  and  was  a  per- 
son having  personal  knowledge  of  the  facts,  his  statement  may  be 
admitted,  in  the  discretion  of  the  court.  The  following  are  familiar 
instances  of  hearsay  in  court-martial  cases: 

(1)  A  soldier  is  being  tried  for  desertion.  Pvt.  A  is  able  to  testify 
that  Pvt.  B  told  Pvt.  A  that  the  accused  told  Pvt.  B  that  he  (the 
accused)  intended  to  desert  at  the  first  opportunity.  Such  testimony 
froni  Pet.  A  would  be  hearsay  and  would  be  inadmissible. 

(2)  A  soldier  is  bein<r  tried  for  larceny  of  clothes  from  a  locker. 
Pvt.  A  is  able  to  testify  that  Pvt.  B  told  Pvt.  A  that  he  (Pvt.  B) 
about  the  time  the  clothes  were  stolen  saw  the  accused  leave  the  quar- 
ters with  a  bundle  resembling  clothes.  Such  testimony  from  Pvt.  A 
would  be  hearsay  and  would  be  inadmissible. 

(3)  A  soldier  is  being  tried  for  selling  clothing.  Policeman  A  is 
able  to  testily  that,  while  on  duty  as  policeman,  he  saw  the  accused 
with  a  bundle  under  his  arm  go  into  a  shop,  that  he  (the  policeman) 
entered  the  shop  and  the  accused  ran  away  and  the  policeman  was 
unable  to  catch  him.  The  policeman  the  next  day  asked  the  pro- 
prietor of  the  shop  what  the  accused  was  doing  there,  and  the  pro- 
prietor replied  that  the  accused  sold  him  some  clothes  issued  by  the 
Government  and  that  he  paid  the  accused  $2.50  for  them.  The  testi- 
mony of  the  policeman  as  to  the  reply  of  the  proprietor  would  be 
hearsay  and  would  be  inadmissible.  The  fact  that  the  policemaj 
acting  in  the  line  of  his  duty  at  the  time  the  proprietor  made  the 
statement  would  not  render  the  evidence  admissible. 

In  the  foregoing  instances  the  fact  that  the  accused  said  he  intended 
to  desert,  that  the  accused  left  the  quarters  with  a  bundle,and  thai 
the  accused  sold  the  proprietor  the  clothes,  const  it  ute  most  important 
evidence  and  can  be  proved  in  the  first  two  instances  by  Pvt.  P>.  and 


108  MANUAL    FOB    COTJBTB  M  UtTIAl  . 

e  third  instance  by  the  proprietor,  but  they  can  not  be  proved  by 
say  evidence. 

If  i>\  idence  is  hearsay  it  does  aot  become  admissible  because  it  was 

made  to  an  officer  in  the  course  of  an  official  investigation.    For  in- 

•  •.  in  illustration  (1),  if  Pvt.  B  had  made  his  statement  to  Capt. 

C  in  the  course  of  an  official  investigation  by  Capt.  C,  the  statement 

would  still  be  hearsay  and  inadmissible. 

Official  statements  and  opinions  as  to  either  guilt  or  innocence 
expressed  by  an  officer,  as,  for  instance,  a  company,  regimental,  or 
department  commander,  or  by  a  stair  officer,  in  an  indorsement,  is 
not  admissible  in  evidence  by  reason  of  its  official  character  or  the 
rank  or  position  of  the  officer  making  it,  as  it  would  be  hearsay.  Xor 
is  such  a  statement  or  opinion  evidence  because  it  is  among  papers 
r>  ferred  to  the  trial  judge  advocate  with  the  charges.  It  would  be 
i:  regular  to  permit  such  statements  or  opinions  to  come  to  the  atten- 
tion of  the  court.  If  they  do  become  known  to  the  court  they  should, 
of  course,  not  be  considered  in  arriving  at  a  finding  or  sentence. 

222.  Dying  declarations. — On  trials  for  murder  and  manslaughter, 
the  law  recognizes  an  exception  to  the  rule  rejecting  hearsay  by 
allowing  the  dying  declarations  of  the  victim  of  the  crime,  in  regard 
to  the  circumstances  which  produced  his  condition,  and  especially 
as  to  the  person  by  whom  the  violence  was  committed,  to  be  detailed 
in  evidence  by  one  who  heard  them.  The  reason  for  admitting  such 
declarations  where  the  victim  believes  death  is  impending  is  that 
his  belief  is  equal  to  the  sanctity  of  an  oath  in  causing  him  to  tell 
the  truth.  It  is  no  objection  to  their  admissibility  that  they  were 
brought  out  in  answer  to  leading  questions  or  upon  urgent  solicita- 
tions addressed  to  him  by  any  person  or  persons;  and  if,  instead  of. 
speaking,  he  answered  the  questions  by  intelligible  signs  these  signs 
may  equally  be  testified  to.  Dying  declarations  are  admissible  as 
well  in  favor  of  the  accused  as  against  him.  It  is  to  be  remarked 
that  evidence  of  dying  declarations  made  as  such  usually  are  under 
circumstances  of  mental  and  physical  depreciation  and  without  being 
subjected  to  the  ordinary  legal  tests  are  generally  to  be  received  with 
great  caution.     (Winthrop,  p.  493.) 

223.  Res  gestae. — Another  exception  to  the  hearsay  rule  consists  of 
the  inculpatory  or  exculpatory  declarations  or  statements  that  con- 
stitute part  of  the  res  gestae.  By  the  res  gestae  is  meant  the  cir- 
cumstances  and  occurrences  substantially  contemporaneous  with  the 
facts  at  issue  that  explain  and  elucidate  the  character  and  quality 
of  such  facts.  Such  arc  threats  or  declarations  of  the  accused  in 
connection  with  his  commission  of  the  crime  that  indicate  his  intent 
or  knowledge;  declarations  or  exclamations  of  a  party  injured  that 
go  to  indicate  tin'  nature  of  the  violence  and  the  parties  responsible; 
language  of  accomplices;  cries  of  bystanders;   facts,  circumstances, 


EVIDENCE.  109 

and  declarations  shewing  premeditation  and  preparation  for  the 
crime.  All  such  may  be  established  by  the  testimony  of  persons  who 
heard  the  utterances,  etc.  All  such  declarations  and  statements  must 
be  made  so  near  in  time  to  the  principal  transaction  as  to  preclude 
the  idea  of  deliberate  design  or  afterthought  in  making  them,  but 
it  is  not  essential  that  they  should  have  been  made  in  the  presence 
or  hearing  of  the  accused.  Nor  does  it  matter  that  the  party  mak- 
ing them  would  be  incompetent  to  testify  in  the  case.  For  instance, 
the  statements  of  a  wife  under  such  circumstances  would  be  admissible 
against  her  husband.  Where  the  crime  committed  is  the  culmination 
of  a  series  of  acts,  such  as  in  riots,  etc.,  the  res  gestae  rule  applies 
to  all  acts  and  declarations  of  the  rioters  and  of  bystanders  that 
would  tend  to  indicate  purpose,  motive^etc. 

For  instance,  the  exclamation  of  a  bystander  who  was  witnessing 
the  building  of  barricades  in  a  street :  "  My  God,  they  arc  getting 
ready  to  resist  the  police  !  "  would  be  admissible  as  tending  to  indicate 
the  purpose  of  that  transaction  where  the  killing  of  certain  of  the 
police  resulted  from  a  fire  directed  from  such  barricades,  though  the 
killing  did  not  occur  until  the  next  day.  The  res  gestae  is  considered 
as  an  act  connected  with  or  an  incident  of  a  main  transaction,  and 
not  as  testimony,  and,  as  soon  as  it  assumes  the  character  of  a  narra- 
tion, rather  than  a  spontaneous  exclamation  that  there  is  no  probable 
ground  for  belief  was  inspired  by  a  desire  to  influence  the  case,  it  is 
inadmissible  as  falling  under  the  hearsay  rule.  The  application  of 
the  rule  of  res  gestae  is  not  limited  strictly  to  circumstances  and 
occurrences  contemporaneous  with  the  principal  facts  at  issue  nor 
with  the  transactions  leading  up  to  the  principal  facts  but  would 
extend  to  a  case  of  identification,  as  when,  for  instance,  a  party  who 
has  seen  the  commission  of  a  crime  and  afterwards  sees  the  accused 
and  spontaneously  identifies  him  by  some  such  exclamation  as 
"  There's  the  man  that  did  the  killing,*'  although  such  statement  as  to 
identification  may  have  been  made  days  after  the  principal  act  was 
committed.  The  following  examples  illustrate  what  constitute  the 
res  gestae: 

Where  the  accused  is  charged  with  sleeping  on  post,  and  it  appears 
that  the  officer  of  the  day  or  corporal  of  the  guard,  in  searching  for 
the  accused,  found  him  sitting  down  with  his  rifle  across  his  knees 
and  his  chin  on  his  chest,  what  they  did  and  said  to  each  other  and 
to  the  accused,  and  the  accused  to  them,  in  what  led  up  to  and  imme- 
diately followed  their  efforts  to  ascertain  whether  or  not  he  was 
asleep,  all  constitute  parts  of  the  res  gestae. 

Where  a  soldier  is  charged  with  murder,  man-laughter,  or  assault, 
and  the  party  against  whom  the  violence  is  offered  is  another  soldier, 
and  the  wife  of  the  former,  while  walking  with  the  Latter,  exclaims, 
"Run!  here  comes  my  jealous  husband,  and  he  will  kill  you!"  her 


110  MANUAL    FOB   GGUBXS-MARTIAL. 

exclamations  would  be  admitted  as  part  of  the  res  gesta?.  If  the  sol- 
dier had  then  fled  to  his  house  pursued  by  her  husband,  and  she  had 
followed  to  deter  him  from  injuring  the  other  party  and  later  had 
run  from  the  house  shouting,  "My  husband  is  killing  Jones!"  or 
"ha-  just  killed  Jones!"  her  exclamations  would  be  admissible  as 
constituting  part  of  the  res  gestae.  If  a  party  in  the  next  room  had 
heard  a  shot  and  then  a  voice  that  he  recognized  as  Pvt.  Joneb's 
"  ^  ou  shot  in"  lor  i'  renge  and  nothing  else,"  the  declaration  would 
be  considered  as  a  part  of  the  res  gestae. 
A  liberal  use  of  this  exception  may  well  be  made. 

224.  Evidence  of  conspirators  and  accomplices. — In  cases  where  several 
persons  join  with  a  common  design  in  committing  an  offense  all  acts 
and  statements  of  each  of  them  made  in  furtherance  of  the  offense 
are  admissible  against  each  of  the  others.  Only  where  the  state- 
ments of  such  conspirator  fall  within  the  rule  laid  down  for  admis- 
sion of  evidence  as  a  part  of  the  res  gestae  could  such  statements  be 
admissible  for  the  defense.  The  declaration  of  a  conspirator,  how- 
ever, made  after  the  common  design  is  accomplished  or  abandoned, 
is  not  admissible  against  the  others.  Such  accomplishment  or  aban- 
donment, however,  should  be  considered  as  extending  to  any  acts 
and  statements  in  furtherance  of  an  escape.  It  is  immaterial  whether 
such  acts  or  statements  were  made  in  the  presence  or  hearing  of  the 
other  parties.  They  are  binding  upon  all  parties  if  they  are  in  fur- 
therance of  the  common  design.  Foundation  must  first  be  laid  by 
either  direct  or  circumstantial  evidence  sufficient  to  establish  prim* 
facie  the  fact  of  conspiracy  between  the  parties,  unless  the  judge 
advocate  states  that  the  conspiracy  will  later  appear  from  evidence 
to  be  adduced.  While  in  Federal  courts  and  courts-martial  corrobo- 
ration of  the  testimony  of  a  coconspirator,  or  accomplice,  need  not  be 
required,  yet  from  the  character  of  the  associations  formed  the 
uncorroborated  testimony  of  a  coconspirator,  or  accomplice,  should 
be  received  with  great  caution. 

225.  Confessions. — Another  exception  to  the  rule  excluding  hearsay 
evidence  is  the  rule  that  admits  testimony  as  to  confessions  of  guilt 
made  by  the  accused.  The  most  common  form  of  confession  is  that 
contained  in  the  plea  of  guilty  made  by  the  accused  in  open  court 
in  answer  to  a  charge.  This  is  not  the  kind  of  confession  referred  to 
as  constituting  an  exception  to  the  hearsay  rule.  The  confessions 
referred  to  are  those  made  out  of  court,  and  to  be  admissible  must  be 
offered  in  their  entirety  and  not  merely  the  parts  disadvantageous  to 
the  accused.  Before  a  confession  of  the  accused  not  made  in  open 
court  can  be  testified  to  the  following  foundations  must  be  laid  by 
the  judge  advocate: 

(a)  There  must  be  corroborating  evidence,  either  direct  or  circum- 
stantial, outside  of  the  confession  itself,  that  the  crime  charged  has- 


EVIDENCE.  Ill 

been  committed.  This  is  what  is  technically  known  as  the  rule 
requiring  proof  of  the  corpus  delicti,'  that  is.  some  proof  of  the  fact 
thai  the  crime  charged  has  probably  been  committed  by  some  one,  so 
that  there  will  be  some,  corroboration  of  the  confession.  It  is  not 
requisite  that  this  outside  evidence  constituting  proof  of  the  corpm 
H  shall  be  sufficient  to  convince  the  court  beyond  a  reasonable 
doubt  of  the  guilt  of  the  accused,  nor  need  it  cover  every  clement 
contained  in  the  charge.  For  instance,  where  desertion  is  charged 
proof  of  absence  without  leave  would  be  considered  as  proving  the 
corpus  delicti;  where  the  charge  is  that  a  sentinel  had  left  his  post 
before  being  regularly  relieved  it  would  be  sufficient  to  prove  that 
he  was  not  on  his  post  during  his  period  of  duty;  where  a  homicide 
is  charged  the  proof  of  the  death  of  the  person  charged  to  have  been 
killed  amounts  to  proof  of  the  corpus  delicti;  and  in  cases  of  lar- 
ceny and  selling  clothing  the  fact  that  the  property  alleged  to  have 
been  stolen  or  sold  was  missing  is  sufficient  proof. 

(o)  It  must  be  affirmatively  shown  that  the  confession  was  entirely 
voluntary  on  the  part  of  the  accused.  A  confession  is,  in  a  legal 
sense,  "  voluntary  "  when  it  is  not  induced  or  materially  influenced 
by  hope  of  release  or  other  benefit  or  fear  of  punishment  or  injury 
inspired  by  one  in  authority,  or,  more  specifically,  where  it  is  not 
induced  or  influenced  by  words  or  acts,  such  as  promises,  assurances, 
threats,  harsh  treatment,  or  the  like,  on  the  part  of  an  official  or 
other  person  competent  to  effectuate  what  is  promised,  threatened, 
etc..  or  at  least  believed  to  be  thus  competent  by  the  party  confessing. 
And  the  reason  of  the  rule  is  that  where  the  confession  is  not  thus 
voluntary  there  is  always  ground  to  believe  that  it  may  not  be  true. 
(Winthrop,  p.  496.)  In  military  cases,  in  view  of  the  authority 
and  influence  of  superior  rank,  confessions  made  by  inferiors,  es- 
pecially when  ignorant  or  inexperienced  and  held  in  confinement 
or  close  arrest,  should  be  regarded  as  incompetent  unless  very 
clearly  shown  not  to  have  been  unduly  influenced.  Statements,  by 
way  of  confession,  made  by  an  inferior  under  charges  to  a  com- 
manding officer,  judge  advocate,  or  other  superior  whom  the  accused 
could  reasonably  believe  capable  of  making  good  his  words  upon 
even  a  slight  assurance  of  relief  or  benefit  by  such  superior  should 
not  in  general  he  admitted.  Thus  in  a  case  where  a  confession  was 
made  to  his  captain  by  a  soldier  upon  being  told  by  the  former  that 
"matters  would  be  easier  for  him,"  or  "as  easy  as  possible,33  if  he 
confessed,  such  confession  was  held  not  to  have  been  voluntary  and 
therefore  improperly  admitted.  And  it  has  been  similarly  ruled  in 
cases  of  confessions  made  by  soldiers  upon  assurances  being  held 
out  or  intimidation  resorted  to  by  noncommissioned  officers.  (Wir- 
throp.  p.  498.)  But  confessions  made  by  private  soldiers  to 
officers  or   noncommissioned   officers,   though   ^>ot    =ho^    +o    have 


112  MANUAL   FOR   COURTS-MARTIAL. 

been  made  under  the  influence  of  promises  or  threats,  etc.,  should, 
l  \  ii'\v  of  the  military  relations  of  the  parties,  be  received  with 
caution.  Of  course,  the  above  principles  apply  to  a  written  confes- 
sion as  well  as  to  a  verbal  one.  In  some  cases  before  courts-martial 
it  appears  that  the  accused  has  signed  a  paper  confessing  his  guilt, 
stating  in  the  paper  that  he  confesses  freely  without  hope  of  reward 
or  fear  of  punishment,  etc.  Such  statements  are  not  conclusive  that 
the  confession  was  voluntary.  Evidence  may  be  introduced.  If  the 
evidence  shows  the  statement  was  not  in  fact  voluntary,  it  should 
not  be  considered  by  the  court, 

Considering,  however,  the  relation  that  exists  between  officers  and 
enlisted  men  and  between  an  investigating  officer  and  a  person  whose 
conduct  is  being  investigated,  and  the  obligation  devolving  upon  an 
investigating  officer  to  warn  the  person  investigated  that  he  need 
not  answer  any  question  that  might  tend  to  incriminate  him,  con- 
fessions made  by  soldiers  to  officers  or  by  persons  under  investigation 
to  investigating  officers  should  not  be  received  unless  it  is  shown  that 
the  accused  was  warned  that  his  confession  might  be  used  against 
him  or  it  is  shown  clearly  in  some  other  manner  that  the  confession 
was  entirely  voluntary. 

In  view  of  the  peculiar  conditions  of  mind  and  body  under  which 
accused  persons  are  often  placed  when  making  confessions,  of  the 
liability  to  mistake  on  the  part  of  the  witnesses  who  repeat  them  when 
oral,  and  of  the  tendency  of  these  latter  to  exaggerate  through  a  zeal 
for  conviction,  evidence  of  confessions,  unless  corroborated  by  other 
reliable  evidence,  is  in  general  to  be  received  with  caution.  Where, 
however,  a  confession  is  explicit  and  deliberate  as  well  as  voluntary, 
and,  if  oral,  is  proved  by  a  witness  or  witnesses  by  whom  it  has  not 
been  misunderstood  and  is  not  misrepresented,  it  is  indeed  one  of 
the  strongest  forms  of  proof  known  to  the  law  (Winthrop,  p.  499). 

Courts  should  bear  in  mind  that  mere  silence  on  the  part  of  an 
accused  when  questioned  as  to  his  supposed  offense  is  not  to  be 
treated  as  a  confession. 

Although  the  confession,  because  not  voluntary,  is  inadmissible, 
yel  any  information  given  in  the  confession  that  leads  to  the  dis- 
covery of  relevant  facts  will  not  render  testimony  of  such  facts 
inadmissible,  and  it  may  be  further  shown,  by  way  of  corroboration 
of  such  facts,  that  the  discovery  was  either  wholly  or  partially  due 
to  the  information  thus  obtained. 

226.  Admissions  against  interest. — Somewhat  connected  with  the  sub- 
ject of  confessions  is  that  of  declarations  or  admissions  against  one's 
own  interest.  This  constitutes  another  exception  to  the  rule  exclud- 
ing hearsay.  In  many  instances  the  accused,  after  the  commission 
of  an  offense,  makes  statements  which  fall  short  of  a  full  confession 
of  guilt  but  do  constitute  important  admissions  as  to  his  connection 


EVIDENCE.  113 

■with  the  offense.  The  rule  is  that  such  admissions  if  against  his 
own  interest  may  be  admitted  in  evidence.  For  instance,  in  a  case  of 
homicide  in  a  dance  hall,  if  the  accused  when  arrested  made  the 
statement  that  he  was  in  the  hall  when  the  homicide  took  place,  such 
a  statement  is  admissible  as  against  his  interest. 

Admissions  against  penal  interests  of  parties  other  than  the  ac- 
cused or  those  connected  with  him  in  the  commission  of  the  crime 
charged,  are  not  admissible  as  evidence.  Such  persons  ought  to  be 
summoned  as  witnesses  and  examined  as  to  such  supposed  admis- 
sions or  confessions. 

227.  Privileged  communications. — A  privileged  communication  is  one 
that  relates  to  matters  occurring  during  a  confidential  relation,  which 
it  is  the  public  policy  to  protect.  A  witness  can  decline  to  answer  a 
question  touching  such  a  communication.  The  confidential  relations 
that  were  protected  at  common  law  and  which  are  met  with  in  court- 
martial  practice  are  the  following: 

State  secrets. — Communications  made  by  informants  to  public  offi- 
cers engaged  in  the  discovery  of  crime  are  privileged.  The  delib- 
erations of  courts  and  of  grand  and  petit  juries  are  privileged,  but 
the  results  of  their  deliberations  are  not  privileged.  Diplomatic  cor- 
respondence, and,  in  general,  all  oral  or  written  official  communi- 
cations which,  in  the  opinion  of  the  President,  would  be  detrimental 
to  the  public  interests,  and  official  communications  between  the  heads 
of  the  departments  of  the  Government  and  their  subordinate  officers 
are  privileged.  Were  it  otherwise  it  would  be  impossible  for  such 
superiors  to  administer  effectually  the  public  affairs  with  which  they 
are  intrusted. 

Husband  and  wife. — Communications  between  husband  and  wife 
are  privileged. 

Attorney  and  client. — The  testimony  of  the  attorney,  his  clerk, 
interpreter,  stenographer,  agent,  or  other  employee  as  to  communi- 
cations between  the  client  and  the  attorney,  made  while  the  relation 
of  attorney  and  client  existed  and  in  connection  with  the  matter  for 
which  the  attorney  was  engaged,  will  not  be  received  by  a  court,  un- 
less siuh  communications  clearly  contemplate  the  commission  of  a 
crime;  i.  e.,  perjury,  subornation  of  perjury,  etc.  Of  course,  com- 
munications prior  to  or  subsequent  to  the  relation  are  not  privileged. 
The  client,  but  not  the  attorney,  may  waive  this  privilege. 

Police  secrets. — The  privilege  that  extends  to  communications  made 
by  informants  to  public  officers  engaged  in  the  discovery  of  crime 
should  be  given  a  common-sense  interpretation.  The  public  interests 
would  ordinarily  be  prejudiced  by  reason  of  the  disclosure  of  such 
communications  in  a  case — and  tins  might  very  reasonably  occur 
where,  for  instance,  the  admission  of  such  communications  would 
.  —is 9 


114  MANUAL  FOR  COUBTS-MAKTIAL. 

disclose  the  identity  of  parties  employed  for  the  detection  of  crimi- 
nals or  would  endanger  the  party  who  made  such  communication,  or 

would  injuriously  affect  the  chances  <.i  securing  such  agents  for  the 
tion  of  crime  in  the  future.     But  the  material  interests  of  the 
ed  to  vindicate  his  innocence  should  not  he  allowed  to  suffer 
lusion  of  such  evidence. 
The  purpose  of  the  privilege,  extended  to  communications  between 
Ji.a.sh,  attorney  and  client,  which  grows  out  of  a 

recognition  of  the  public  advantage  that  accrues  from  encouraging 
free  communication  in  such  circumstances,  is  not  disregarded  by 
allowing  outside  parties  who  overhear  such  privileged  communica- 
tion to  testify  to  what  they  have  overheard.  It  would  not  be  per- 
mitted, however,  for  one  of  the  minor  children  of  the  parents,  who 
might  reasonably  be  presumed  by  the  parents  not  to  understand  what 
talking  about,  to  testify  to  communications  overheard  by 
such  child. 

228.  Privilege  of  wife  and  husband  to  testify. — At  common  law  the 
early  rule  was  that  neither  husband  nor  wife  is  competent  as  a  wit- 
ness against  the  other,  but  later  admitted  an  exception  in  a  case  of 
bodily  injury  indicted  by  one  of  them  upon  the  other. 

Certain  departures  have  been  made  from  the  common-law  rule  by 
i -a  I  statutes  and  decisions  of  the  courts  which,  giving  considera- 
tion to  the  reasons — i.  e.,  the  necessities  of  justice  that  demand  relax- 
ation of  the  rule  in  cases  of  bodily  injury — have  extended  the  field  of 
instances  to  which  the  necessities  of  justice  must  necessarily  apply 
In  any  prosecution  for  bigamy,  polygamy,  or  unlawful  cohabita- 
tion under  any  statute  of  the  United  States,  the  lawful  husband  or 
of  the  accused  shall  be  a  competent  witness,  and  may  be  called 
but  shall  not  be  compelled  to  testify  in  such  proceedings,  and  shall 
be  compelled  to  testify     *     *     *     without  the  consent  of  the 
husband  or  wife,  as  the  case  may  be.     (Act  of  Mar.  3,  1887,  24  Stat., 
i     A  married  woman  is  excluded  as  a  witness  from  motives  of 
public  policy.     (Lucas  v.  Brooks,  18  Wall.,  436,  453.) 

The  wife  should  be  permitted  to  testify  against  her  husband,  even 
without  his  consent,  whenever  she  is  the  particular  individual  directly 
injured  by  i he  crime  committed  by  her  husband  and  the  facts  are 
peculiarly  within  her  knowledge  and  impossible  or  difficult  of  proof 
by  any  witness  other  than  the  wife.  (State  (Ma)  v.  Bean,  78  S.  W., 
640.)  It  would  therefore  be  appropriate  m  Buch  cases  against  a 
husband  as  bodily  injury  of  any  character  Inflicted  by  him  upon  her, 
bigamy,  polygamy,  or  unlawful  cohabitation,  abandonment  of  wife 
children,  or  failure  to  support  them,  for  the  wife  to  be  permitted 
to  testify  against  her  husband. 


EVIDENCE.  115 

The  principle  enunciated  above  as  to  permission  of  the  wife  to 
testify  should  be  extended  to  a  husband  in  analogous  cases.  (<".  M. 
(  .  .!/'..  No.  '}.) 

229.  Telegrams  not  privileged. — Neither  private  telegrams  nor  the 
information  regarding  them  that  comes  to  the  knowledge  of  telegraph 
operators,  either  military  or  civil,  are  privileged.  Telegraph  opera- 
tors, both  military  and  civil,  may  be  subpoenaed  to  testify  before  a 
court-martial  as  to  private  telegrams,  and  private  telegrams  may 
be  brought  before  a  court-martial  by  the  usual  process. 

230.  Confidential  papers. — The  reports  of  special  inspections  by  the 
Inspector  General's  Department  are  confidential  documents  and  the 
testimony  taken  is  considered  a  part  and  parcel  of  such  reports. 
There  is  no  law  or  regulation  which  requires  copies  of  the  evidence 
contained  in  these  confidential  reports  to  be  furnished  to  officers 
whose  conduct  has  been  under  investigation.  So  also  the  reports  of 
the  Judge  Advocate  General  to  the  Secretary  of  War  have  always 
been  regarded  as  confidential  communications  and  it  has  not  been  the 
practice  to  furnish  copies  of  them  to  parties  outside  the  department 
in  the  absence  of  special  authority  from  the  Secretary  of  War.  If 
the  prosecution  has  had  access  to  any  such  document,  fairness  re- 
quires that  the  accused  should  have  equal  access  to  it. 

231.  Communications  from  officers  or  soldiers  to  medical  officers  not 
privileged. — It  is  the  duty  of  medical  officers  of  the  Army  to  attend 
officers  and  soldiers  when  sick,  to  make  the  annual  physical  examina- 
tion of  officers,  and  examine  recruits  for  enlistment,  and  they  may 
be  specially  directed  to  observe  an  officer  or  soldier  or  specially 
to  examine  or  attend  them;  such  observations,  examination,  or  at- 
tendance would  be  official  and  the  information  acquired  would  be 
official  While  the  ethics  of  the  medical  profession  forbid  them  to 
divulge  to  unauthorized  persons  the  information  thus  obtained  and 
the  statements  thus  made  to  them,  such  information  and  statements 
do  not  possess  the  character  of  privileged  communications.  If  the 
medical  officer,  when  called  as  a  witness  before  a  court-martial,  refuses 
to  testify  to  such  matters,  he  is  subject  to  charges  under  A.  W.  96. 

232.  Communications  between  civilian  physicians  and  patients  not  priv- 
ileged.— Neither  are  the  communications  between  civilian  physician 
and  patient  privileged,  and  the  refusal  of  a  physician  to  testily  to 
such  communications  would  subject  him  to  the  prosecution  provided 
by  A.  W.  23. 

233.  Compulsory  self-crimination  prohibited. — The  fifth  amendment 
to  the  Constitution  of  the  United  States  provides  that  in  a  criminal 
case  the  person  shall  not  be  compelled  "to  be  a  witness  against 
himself."  The  principle  embodied  in  this  provision  applies  to  trials 
by  courts-martial  and  is  not  limited  to  the  person  on  trial,  but  ex- 


116  MANUAL   FOR  COURTS-MARTIAL. 

tends  to  any  person  who  may  be  called  as  a  witness;  A.  W.  24,  in 
furtherance  of  this  principle,  provides  thai  no  witness  before  a  mili- 
tary court,  commission,  court  of  inquiry,  or  board,  or  before  any 
•.  military  or  civil,  designated  to  take  a  deposition  to  be  read  in 
evidence  before  a  military  court,  commission,  court  of  inquiry,  or 
board,  shall  be  compelled  to  incriminate  himself  or  to  answer  any 
questions  which  may  tend  to  incriminate  or  degrade  him. 

The  constitutional  guaranty  contained  in  the  fifth  amendment  is 
predicated  upon  the  "well  established  and  universally  accepted 
maxim  of  the  common  law  that  a  witness  shall  not  be  compelled 
to  answer  any  question  that  tends  to  criminate  him  or  to  expose  him 
to  criminal  prosecution  or  to  a  penalty"  (Rice,  p.  298),  nor  to  an- 
swer any  question  not  material  to  the  issue  that  may  tend  to  degrade 
him.  It  must  be  noted  that  this  rule  draws  a  distinction  between 
questions  that  tend  to  criminate  and  those  that  tend  to  degrade,  the 
protection  extending  in  the  first  instance  against  questions  whether 
material  or  not,  while  in  the  second  instance  it  extends  only  to  ques- 
tions which  are  not  material  to  the  issue.  And  this  is  not  limited 
to  the  main  issues  in  the  case;  for  instance,  "as  the  credibility  of 
a  witness  is  always  an  issue,  he  must,  therefore,  answer  questions 
which  are  no  other  way  material  than  as  affecting  his  credibility." 
(Roscoe,  p.  149.) 

(a)  Rule  as  to  questions  tending  to  degrade. — Where  common-law 
rules  have  been  written  into  our  Constitution  and  laws  they  have 
been  given  the  construction  that  attach  to  them  under  common-law 
practice,  and  so  the  provisions  of  A.  W.  24  must  be  presumed  to  have 
been  declaratory  of  the  common-law  protection  afforded  witnesses 
and,  as  to  questions  tending  to  "degrade,"  must  be  accepted  with 
the  distinction  drawn  by  the  common  law — that  is,  as  extending  only 
to  questions,  not  material  to  the  issue,  that  tend  to  "  degrade." 

(b)  Where  privilege  as  to  self -crimination  ceases. — As  in  the  fol- 
lowing cases  the  witness  would  not  be  liable  to  the  law's  punishment, 
his  privilege  as  to  self-incrimination  ceases: 

Conviction  and  the  suffering  of  the  punishment;  acquittal,  or  other 
former  jeopardy;  abolition  of  the  general  crime,  subsequent  to  its 
commission  (provided  the  rule  of  criminal  law  thereby  exonerates 
prior  offenders)  ;  lapse  of  time  barring  prosecution  of  the  particular 
offense;  executive  pardon  for  the  particular  offense;  statutory  am- 
nesty, before  or  after  the  act,  for  the  particular  criminal  act  or  for 
the  offender.     (Wigmore,  p.  31G3.) 

234.  Privilege  against  self-crimination  is  a  personal  one. — The  privi- 
lege of  a  witness  to  refuse  to  respond  to  a  question,  the  answer  to 
which  may  incriminate  him,  is  a  personal  one,  which  the  witness  may 
exercise  or  waive  as  he.  may  see  fit.  It  is  not  for  the  judge  advocate 
or  accused  to  object  to  the  question  or  to  check  the  witness,  or  for 


EVIDENCE.  117 

the  court  to  exclude  the  question  or  direct  the  witness  not  to  answer. 
Where  it  appears  that  the  witness  is  ignorant  of  his  rights  and  that 
the  answer  to  a  question  might  incriminate  him,  the  president  of  the 
court  will  inform  him  of  his  right  to  decline  to  make  any  answer 
which  might  tend  to  incriminate  him. 

235.  Procedure  where  alleged  incriminating  question  is  asked. — Where 
the  court  overrules  an  objection  made  by  a  witness  that  the  answer 
to  a  question  will  incriminate  him  the  witness  should  answer  the 
question.  If  he  is  a  person  subject  to  military  law  ami  refuses  to 
answer,  charges  may  be  preferred  against  him  under  A.  W.  96.  If 
he  is  a  civilian  witness  the  facts  should  be  certified  to  the  United 
States  district  atttorney  by  the  court  with  a  view  to  his  prosecution 
as  provided  in  A.  W.  23.  (See  A.  W.  23  as  to  other  tribunals  and 
agencies.)  In  any  case  of  refusal  to  answer  a  question  after  the 
court  has  held  it  to  be  a  proper  one,  the  refusal  may  be  commented 
on  by  the  judge  advocate  or  counsel  in  his  remarks  to  the  court. 

As  to  civilians,  as  well  as  those  in  the  military  service,  the  national- 
defense  act  (sec.  108,  Act  June  3,  1916,  39  Stat.,  209)  provides  that 
presidents  of  courts-martial  and  summary  court  officers  of  the  Na- 
tional Guard,  not  in  the  service  of  the  United  States,  shall  have 
power  "  to  issue  subpcenas  and  subpcenas  duces  tecum  and  to  enforce 
by  attachment  attendance  of  witnesses  and  production  of  books  and 
papers  and  to  sentence  for  refusal  to  be  sworn  or  to  answer  as  pro- 
vided in  actions  before  civil  courts."  In  such  cases  the  punishment 
would  be  for  contempt  of  court. 

236.  Not  self-crimination  to  require  accused  to  submit  to  physical 
examination. — "  The  prohibition  of  the  fifth  amendment  against  com- 
pelling a  man  to  give  evidence  against  himself  is  a  prohibition  of  the 
use  of  physical  or  moral  compulsion  to  extort  communications  from 
him  and  not  an  exclusion  of  his  body  as  evidence  when  it  is  material." 
(Holt  v.  U.  S.,  218  U.  S.,  245.)  In  addition  to  this  rule  of  general 
application  in  the  Federal  courts  it  has  been  decided  that: 

When  a  person  enlists  in  the  military  service  he  waives  or  surren- 
ders, during  the  period  of  his  enlistment,  some  of  the  rights  which 
he  possessed  as  a  citizen.  He  does  this  without  compulsion,  the  sur- 
render resulting  from  his  voluntary  enlistment  in  the  military  serv- 
ice.   (U.  S.  v.  Grimley,  137  U.  S.,  147.) 

Among  other  incidents  of  the  military  status  to  which  he  volun- 
tarily submits  himself  is  that  of  physical  examination  by  proper 
military  authority  such,  for  example,  as  is  required  by  regulation 
when  he  enlists  in  the  military  establishment,  at  which  time  his  linger 
and  thumb  prints  are  takeu,  and  any  marks  <>r  sears  which  appear 
on  any  part  of  his  body  are  made  the  subjed  <>!'  official  record  on  a 
card  provided  for  that  purpose  by  The  Adjutanl  General,  and  the 
right  to  impose,  and  the  corresponding  duty  to  submit  to,  a  proper 


llg  MANUAL  FOR  COURTS-MARTIAL. 

icaJ  examination,  a*  the  discretion  and  upon  the  order  of  a  com- 
:  military  superior,  continues  to  exist  so  long  as  be  remains 
Loe  in  the  operation  of  hi  I  of  enlistment. 

..-  are  illusl  £  what  might  b  I  without 

violating  the  privilege  contai]  &&h  amendment: 

The  admission  of  testimony  as  to  marks  and  scars  found  u. 

ttdant,  in  a  criminal  prosecution,  during  a  forei- 
him  with  a  view  to  aseertauaing  his  identity  for 
the  purpose  of  im,  is  not  prohibited.    (<  Indiana, 

L.  R.  A..  B  '  Cye^  4<>D 

Upon  the  trial,  a  question  was  rai  the  identit 

itmess  testified  that  he  knew  the  defendant,  and 

knew   that  he  had   tattoo  marks    (a  female  head  and  bust)    on 

right    forearm.      The    court    thereupon   compelled    the    defendant, 

against  his  objection,  to  exhibit  his  arm,  in  such  a  manner  as  to  show 

3  to  the  jury.     (State  v.  All  Chuey,  alias  Sam  Good,  14 

I    An  officer  also  of  the  Army  was  ordered  to  a  place  tor  Ldenti- 

fieat  i  tan  witnesses  in  relation  to  charges  which  were  pend- 

st  the  officer,  and  it  was  held  that  such  an  order  would  not 

ation  of  the  officer's  privilege,  as  it  called  for  no  testimonial 

communication  from  him. 

It  follows  that  it  would  be  appropriate  for  the  court  to  order  the 
accused  to  remove  his  clothing  for  the  purpose  of  examination  by  the 
or  by  a  surgeon  who  would  later  testify  as  to  the  results  of  his 
■:nation  and,  upon   refusal  to  obey  the  order,  might  have  his 
doth  ed  by   force.     The  accused   might  likewise  be  com- 

pelled lo  try  on  clothing  or  shoes  or  place  his  bare  foot  in  tracks,  etc., 
but  where  resort  to  extreme  force  would  be  necessary  to  compel  com- 
pliance in  the  presence  of  the  court  it  would  comport  more  with  the 
dignity  of  the  court  to  have  a  surgeon  make  the  examination  out  of 
the  presence  of  the  court  and  testify  as  to  b  urina- 

tion, or  toad\  i.-e  the  accused  aslothe  purpose  of  the  examination  and 
to  warn  him  that  his  refusal  to  obey  would  he  considered  as  an 
admission  on  his  part  of  what  was  sought  to  be  ascertained  by  the 
examination,  This  conclusion  would  be  quite  within  Legail  bounds  as 
to  presumption  of  : 

237.  Manner  of  proving  contents  of  writing.— A  writing  is  the  best 
evidence  of  its  own  contents  and  must  be  introduced  to  prove  its 
contend  .  Bid  ifii  hasbeenlosi  or  destroyed  or  ii  is  otherwise  satis- 
factorily shown  that  the  writing  can  not  be  produced,  then  the  con- 
tents may  be  proved  bj  a  copy  or  by  oral  testimony  of  witnesses  who 
have  seeii  the  writing.  Under  this  rule  if  it  is  desired  to  prove  the 
contents  of  ;L  private  letter  or  other  unofficial  paper,  or  an  ollicial 
paper  such  as  a  pay  voucher,  written  claim  against  the  Government, 


EVIDENCE.  119 

pay  roll  or  muster  roll,  company  morning  report,  enlistment  pa 
etc.,  the  strict  and  formal  method  of  doing  so  is  to  prove  by  proper 
evidence  that  the  writing  is  in  fact  what  it  purports  to  be,  and  I 
introduce  in  evidence  the  original  or  a  properly  authenticated  i  • 

In  order  to  prove  that  a  writing  is  what  it  purports  to  be,  in 
of  a  private  letter,  the  person  who  received  the  letter  should  testify 
that  he  received  it  and  he  should  identify  it.  Then  it  should  b< 
proved  that  the  signature  is  in  the  handwriting  of  the  purported 
writer  of  the  letter.  But  in  proving  the  genuineness  of  letters  the 
rule  is  that  the  arrival  by  mail  of  a  reply  purporting  to  be  from  the 
addressee  of  a  prior  letter  duly  addressed  and  mailed,  is  sufficient  evi- 
dence of  the  genuineness  of  the  reply  to  justify  its  introduction  in 
evidence.  A  similar  rule  prevails  as  to  telegrams  purporting  to  be 
from  the  addressee  of  a  prior  telegram  or  telephone  message. 

If  the  writing  is  an  official  document  such  as  a  pay  voucher,  the 
person  having  official  custody  should  produce  it  in  court  and  testify 
that  he  is  the  custodian  of  the  writing  and  that  it  is  the  pay  voucher 
of  the  person  whose  name  is  signed.  The  signature  to  the  voucher 
should  be  proved  to  be  genuine  if  that  is  not  admitted.  In  court- 
martial  practice  the  opposing  party  usually  admits  a  public  document 
without  requiring  such  strict  proof.  The  entries  in  pay  vouchers, 
muster  and  pay  rolls,  company  morning  reports,  and  other  public 
records  used  in  the  Army,  are  open  to  inspection  by  both  parties,  and 
contain  numerous  entries  not  pertaining  to  the  case  being  tried.  Ii 
is  the  practice,  in  the  absence  of  an  objection,  to  prove  their  contents 
by  the  oral  testimony  of  a  witness,  usually  the  custodian,  reading  the 
material  matter  in  court. 

When  the  original  consists  of  numerous  writings  which  can  not 
conveniently  be  examined  by  the  court,  and  the  fact  to  be  proved  is 
the  general  result  of  the  whole  collection,  and  that  result  is  capable 
of  being  ascertained  by  calculation,  the  calculation  may  be  made  bj 
some  competent  person  and  the  result  of  the  calculation  testified  to 
by  him,  as,  for  instance,  if  the  fact  to  be  proved  is  the  balance  shown 
by  account  books.  In  such  case  the  opposite  party  should  have  access 
to  the  books  and  papers  from  which  the  calculation  is  made. 

It  is  customary  for  the  party  introducing  a  writing  in  evidence  to 
read  it  to  the  court.  But  unless  the  court  directs  it  to  be  read  at 
once  it  may  be  read  at  any  time. 

Section  TV. 

DOCUMENTS. 

238.  Public  records. — An  important  exception  to  the  rule  that  the 
contents  of  a  writing  must  be  proved  by  the  writing  itself  is  in  the 
case  of  public  records  required  to  be  preserved  on  file  in  a  public 


120  MANUAL  FOR   COURTS-MARTIAL. 

.  in  which  case  duly  authenticated  copies  may  be  admitted  in 
evidence  equally  with  originals  without  first  proving  that  the  origi- 
nals have  been  lost,  destroyed,  or  their  absence  accounted  for  in  some 
other  way.    This  exception  is  made  necessary  by  the  inconvenience  to 

public  business  thai  would  result  if  such  records  were  removed. 
["•>.  •  following  order  covers  this  exception  so  far  as  concerns  records 

papers  in  the  War  Department  and  its  bureaus  and  in  military 
offices: 
Copies  of  any  records  or  papers  in  the  War  Department,  in  any  of 

iireaus,  or  in  an  office  of  any  of  the  supply  departments;  or  at 
the  headquarters  of  an  army,  field  army,  division,  brigade,  or  regi- 
ment; or  of  a  territorial  division,  territorial  department,  or  post,  if 
authenticated  by  the  impressed  stamp  of  the  bureau,  office,  or  head- 
quarters  having  custody  of  the  originals  (for  example,  "The  Adju- 
tant General's  Office,  official  copy"),  may  be  admitted  in  evidence 
equally  with  the  originals  thereof  before  any  military  court,  commis- 
sion, or  board,  or  in  any  administrative  matter  under  the  "War 
Department.     (G.  O.  16,  W.  D.,  1912.) 

239.  Certain  official  writings  are  evidence  of  facts  recited  therein. — 
Where  the  law  requires  that  the  evidence  of  certain  facts  and  events 
shall  be  recorded  in  certain  writings,  the  original  writing  containing 
this  evidence  is  competent,  i.  e.,  prima  facie  evidence  of  the  facts  and 

\ents  recorded  in  it.  For  instance,  the  original  of  an  enlistment 
paper,  the  physical  examination  paper,  outline  figure  card  and 
finger-print  card,  and  the  original  morning  report  sheet  are  com- 
petent evidence  of  the  facts  recited  in  them.  By  authorit}^  of  the  War 
Department  order,  properly  authenticated  copies  of  these  papers 
may  be  admitted  in  evidence  equally  with  the  original.  (See  par. 
238.)  A  descriptive  and  assignment  card, however,  is  not  an  original 
paper.  All  the  information  it  contains  is  compiled  from  other  origi- 
nal sources,  and  therefore  it  is  not  evidence  of  the  facts  recited  in  it. 

240.  Comparison  of  handwriting. — The  common-law  rule  of  evidence 
would  not  permit  a  comparison  of  handwriting  unless  the  writing 
to  be  used  as  a  standard  was  properly  in  the  case  for  other  purposes 
than  mere  comparison.  This  rule  was  changed  by  act  of  Congress 
approved  February  26,  1913  (37  Stat,  683),  which  provides— 

That  in  any  proceeding  before  a  court  or  judicial  officer  of  the 
United  States  where  the  genuineness  of  the  handwriting  of  any  per- 
son may  be  involved,  any  admitted  or  proved  handwriting  of  such 
person  shall  be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses, or  by  the  jury,  court,  or  officer  conducting  such  proceeding  to 
prove  or  disprove  such  genuineness. 

But  before  admitting  such  specimens  of  handwriting,  satisfactory 
evidence  should  be  offered  as  to  the  genuineness  of  the  same. 


EVIDENCE.  121 

The  rule  prescribed  by  Congress  will  govern  in  courts-martial 
procedure. 

241.  Use  of  memoranda. — Memoranda  may  be  used  to  aid  the  memory 
or  to  supply  facts  once  known  but  now  forgotten.  Memoranda  are 
therefore  of  two  sorts:  First,  if  the  Avitness  does  not  actually  re- 
member the  facts  but  relies  on  the  memorandum  exclusively  (as  in 
the  case  of  a  bookkeeper  using  an  old  account  book),  then  the  wit- 
ness must  be  able  to  guarantee  that  the  record  accurately  represented 
his  knowledge  and  recollection  at  the  time  of  its  making,  but  it  is 
not  necessary  that  he  should  himself  have  made  the  record  if  he  can 
state  from  his  present  recollection  that  it  was  correct  when  made 
and  the  entries  must  have  been  made  at  or  near  the  time,  and  the 
recollection  at  such  time  must  have  been  fresh  as  to  the  i  led. 
Second,  if  the  witness  can  actually  remember  the  facts  and  merely 
needs  the  memorandum  to  stimulate  or  revive  his  memory,  or  a  part 
of  it,  then  the  above  limitations  do  not  strictly  apply.  But  the  court 
should  see  to  it  that  no  attempt  is  made  to  use  such  a  paper  to  impose 
a  false  memory  on  the  court  under  guise  of  refreshing  it. 

The  memorandum  to  be  used  must  always,  on  demand,  be  shown 
to  the  opponent  for  purposes  of  inspection  and  cross-examination, 
and  fairness  and  justice  require  that  where  a  memorandum  is  con- 
sulted before  trial  for  refreshing  a  witness's  recollection,  statement 
should  be  made  by  the  judge  advocate  or  counsel  to  that  effect,  and 
the  memorandum  should  be  brought  into  court  by  the  side  whose 
witness  has  so  consulted  it. 

242.  Memorandum  as  evidence. — Where  a  memorandum  does  not 
serve  to  refresh  the  recollection  of  the  witness,  but  he  can  state  that  it 
was  made  when  his  memory  was  fresh  and  can  give  the  guaranty  of 
accuracy  and  recollection  called  for  by  the  preceding  section,  the 
memorandum  itself  will  be  admissible.  Where  the  witness's  cer- 
tainty rests  on  his  usual  habit  or  course  of  business  in  making  mem- 
oranda or  records,  it  is  sufficient. 

243.  Memorandum  for  refreshing  recollection. — Where  a  witness  states 
that  the  memorandum  to  be  used  refreshes  his  recollection  to  the 
extent  of  his  now  remembering  the  data  contained  therein,  the 
common  rule  is  to  have  him  testify  as  to  such  facts  without  admit- 
ting in  evidence  the  memorandum  itself. 

244.  Books  of  account. — Entries  in  books  of  account,  where  such 
books  are.  proven  to  have  been  kept  in  the  regular  course  of  lius'mess, 
and  the  entrant  is  dead,  insane,  out  of  the  jurisdiction  of  the  court, 
or  otherwise  unavailable  to  testify,  are  admissible  as  evidence.  Also 
the  lack  of  an  entry  in  a  series  of  written  entries  is  admissible  as  an 
implied  statement  that  no  events  occurred  of  the  kind  that  would 
have  been  recorded. 


122  MANUAL  FOR   COURTS- MARTIAL. 

Where  the  entrant  i  to  testify  in  court,  books  of  account 

■will  be  used,  just  as  memoranda  are  used  for  the  purpose  of  refresh- 
tiou  of  the  ■    'ence 

in  eo]  •  ith  his  testimony. 

Where  the  entrant  only  records  an  oral  report  or  writ 
randum  made  in  the  regular  course  of  business  by  another  person 
or  persons,  such  other  person  or  persons,  if  available,  nausl  be  called 
tify. 
The  ocument  of  entry  must  be  produced  or  accounted 

for.     Where  a  composite  entry  is  used,  the  extent  to  which  inter- 
medj  i  anda  must  be  produced  depends  on  the  circumstances 

of  each  case.     As  between  ledger  and  daybook  or  other  kinds,  the 
hook-  required  is  that  which  contains  the  first  regular  and  collected 
;  of  the  transactions.     (Wigmore,  sec.  1530.) 

245.  Maps,  photographs,  etc. — Maps,  photographs,  sketches,  etc.,  as 
to  localities,  wounds,  etc.,  are  admissible  as  evidence  when  properly 

led  by  the  party  that  made  them  or  when  coming  from  official 

sources  that  are  a  guaranty  of  truthfulness  and  accuracy.     This 

r  of  evidence  is  capable  of  gross  misrepresentation  of  facts 

and  should  be  carefully  scrutinized.    Finger  prints,  upon  such  veri- 

!i  or  guaranty,  are  admis 

Section  V. 

EXAMINATION   OF  WITNESSES. 

246.  Witnesses  examined  apart  from  each  other. — "Witnesses,  after 
having  been  first  sworn  as  provided  in  par.  134,  are  usualty  examined 

t  from  each  other,  no  witness  being  allowed  to  be  present  during 
the  examination  of  another  who  is  called  before  him.  But  this  rule 
is  not  inflexible;  it  is  in  practice  subject  to  the  discretion  of  the 
court,  nor  is  it  ever  so  rigidly  observed  as  to  exclude  the  testimony 
of  a  person  because  he  has  been  present  at  the  examination  of  other 
witnesses. 

247.  Objections  to  competency;  when  made. — Any  objection  to  the 
witness's  competency  should  be  made  before  he  is  sworn.  If  his  in- 
competency should  later  appear,  however,  a  valid  objection  should 
be  sustained. 

248.  Number  of  witnesses  required. — Though  there  are  occasional 
dangers  in  trusting  to  a  single  witness,  the  testimony  of  a  single 
qualified  witness  to  the  facts  in  issue  would  suffice  to  sustain  a  con- 
viction, except  as  to  (1)  treason,  where  there  must  be  two  witnesses 

Eying  credibly  to  the  same,  overt  act,  or  (2)  perjury,  where  there 
must  b"  either  (a)  a  second  witness  to  the  falsity  alleged  or  (b)  a  cor- 
roboration of  a  single  witness  by  some  other  form  of  evidence.    The 


EVIDENCE. 

rule  as  to  perjury  does  not  apply,  however,  \  Q  be 

inferred  from  a  contradictory  statem 

more's  P.  C,  338,  339.)     For 

with  a  perjury  as  to  facts  di  <>r 

written  testimony  springing  from  himself,  with  ei 

ing  the  corrupt  intent;  in  cases  where  the  perjury 

icted  by  a  public  record,  proved  to  have  been  well  know] 
the  defendant  when  he  took  the  oath;  and 
swearing  can  be  proved  by  his  own  letters  relating  to  the  fact  s\. 
to.  or  by  other  written  testimony  existing  and  being  found  in  the 
possession  of  a  defendant  and  which  has  been  treated  by  him 
containing  the  evidence  of  the  fact  recited  in  it.     (U.  S.  v.  Wood, 
14  Pet.,  430.) 

(See  par.  -224  as  to  corroboration  of  an  accomplice  and  see  par.  225 
as  to  corroboration  of  a  confession.) 

249.  Order  of  examination  of  witnesses. — While  the  proper  and  usual 
order  and  sequence  of  examination  of  witnesses  contemplates  that  the 
-sses  for  the  prosecution  shall  be  called  first  and  then  the  wit- 
s  for  the  accused,  and  afterwards  the  witnesses  for  the  prosecu- 
tion in  rebuttal  of  testimony  brought  out  by  the  accused,  and  then 
the  witnesses  for  the  accused  in  rebuttal  of  those  last  introduced  by 
the  prosecution,  and  then  witnesses  by  the  court;  and  that  the  method 
of  examining  each  witness  shall  be  direct  examination,  cross-examina- 
tion, redirect  examination,  recross-examination,  and  examination  by 
the  court,  the  court  may,  in  the  interest  of  truth  and  justice,  call 
or  recall  witnesses,  or  permit  their  recall  at  any  stage  of  the  pro- 
ceedings; it  may  permit  material  testimony  to  be  introduced  by 
either  party  quite  out  of  its  regular  order  and  place,  or  permit  a  case 
once  closed  by  either  or  both  sides  to  be  reopened  for  the  introduction 
of  testimony  previously  omitted,  if  convinced  that  such  testimony 
is  so  material  that  its  om  ould  leave  the  investigation  incom- 

plete.    In  all  such  cases  both  parties  must  be  present,  and  any  I 
mony  thus  received  would  be  subject  to  cross-examination  and  re- 
buttal by  the  party  to  whom  it  may  be   adverse. 

250.  Direct  examination.— The  first  question  to  be  asked  each  wit- 
ness, whether  called  for  the  prosecution  or  defense  or  by  the  1 1 
will  be,  whether  he  knows  the  accused  and  if  he  does  to  state  who  he 
is.  This  question  is  always  asked  by  the  judge  advocate.  The  ac- 
cused having  been  identified  the  examination  of  the  witness  is  con- 
tinued by  the  person  railing  him.     All  questions  and  answers  are 

■  i  ded  in  full,  and  as  far  as  possible  in  the  exact  language  of  the 
witness.  If  an  objection  is  made  bo  a  question,  the  reason  for  the 
objection  will  be  stated. 

251.  Cross-examination.— 1  n  general  the  cross-eocaminatioD  must  be 
limited  to  matters  brought  out  by  the  direct  examination  of  the  wit- 


124  MANUAL  FOR  COURTS-MARTIAL. 

ness,  but  in  the  discretion  of  the  court  exceptions  may  be  made  to 
this  rule.  As  it  is  the  purpose  of  the  cross-examination  to  test  the 
credibility  of  the  witness  it  is  permissible  to  investigate  the  situation 
of  the  witness  with  respect  t<>  the  parties  and  t«>  the  subject  of  the 
litigation,  his  interest,  his  motives,  inclinations,  and  prejudices,  his 
means  of  obtaining  a  correct  and  certain  knowledge  of  the  facts  to 
which  he  bears  testimony,  the  manner  in  which  he  has  used  those 
means,  his  powers  of  discernment,  memory,  and  description.  Lead- 
ing questions  may  be  freely  used  on  cross-examination.  (Davis, 
p.  285.) 

252.  Redirect  and  recross-examination. — Ordinarily  the  redirect  ex- 
amination will  be  confined  to  matters  brought  out  on  the  cross- 
examination,  and  the  recross-examination  will  be  confined  to  matters 
brought  out  on  the  redirect  examination.  But  in  these  matters  the 
court,  in  the  interest  of  truth  and  justice,  should  be  liberal  in  relax- 
ing the  rule. 

253.  Examination  by  the'  conrt. — The  court  or  a  member  may  ask 
questions  of  a  witness  when  it  is  apparent  that  the  examination  of 
the  witness  already  made  has  failed  to  bring  out  matters  material 
to  the  issues,  and  for  the  same  reasons  a  witness  may  be  recalled 
or  a  new  witness  summoned  by  the  court. 

254.  Leading  questions. — Leading  questions,  that  is,  questions  which 
suggest  the  answer  it  is  desired  the  witness  shall  make,  or  which, 
embodying  a  material  fact,  are  susceptible  of  being  answered  by 
a  simple  yes  or  no,  should  not  be  asked.  For  example,  "Did  you 
not  see  the  accused  leave  his  quarters  with  a  bundle  under  his  arm?"' 
is  a  leading  question.  In  such  case  the  question  should  be  "Did 
you  see  the  accused?"  If  the  answer  is  in  the  affirmative,  add 
"What  was  he  doing?"  Again,  for  example,  the  question,  "Did 
you  hear  the  accused  say  he  did  not  intend  to  come  back?"  would 
be  leading.  The  proper  form  of  the  question  should  be:  "Did  the 
accused  say  anything?"  If  the  answer  is  in  the  affirmative,  add 
"  State  what  he  said."  So,  where  a  knife  is  introduced  in  evidence 
a  witness  should  not  be  asked  whether  that  is  the  knife  he  saw  the 
accused  stab  Pvt.  A  with,  but  he  should  be  asked  whether  he  recog- 
nizes the  knife,  and  if  he  does,  where  he  saw  it  and  what  was  done 
with  it,  etc.  The  following  are  the  exceptions  to  the  rule  that  lead- 
ing questions  will  not  be  asked  : 

(1)  Leading  questions  may  be  asked  on  cross-examination. 

(2)  To  abridge  the  proceedings,  the  witness  may  be  led  at  once  to 
points  on  which  he  is  to  testify,  and  the  admitted  facts  in  the  case 
may  be  recapitulated  to  him.  The  rule  is  therefore  not  applicable 
to  that  part  of  the  examination  of  a  witness  which  is  merely  intro- 
ductory. For  example,  in  a  desertion  case  where  the  accused  admits 
that  on  a  certain  day  at  a  certain  place  he  was  apprehended  as  a 


EVIDENCE.  125 

deserter  by  a  policeman,  the  hitter  when  on  the  stand  may  have  his 
attention  directed  at  once  to  the  occasion  by  such  a  question  as 
whether  at  a  certain  time  and  place  he  arrested  the  accused  as  a 
deserter.  The  witness  having  answered  the  question  in  the  affirm- 
ative, in  the  next  question  lie  might  properly  be  asked  to  state  the  de- 
tails connected  with  the  arrest.  So  in  a  case  of  disobedience  of  orders 
where  there  is  no  dispute  that  the  alleged  disobedience  took  place 
at  a  certain  time  and  place  and  that  it  involved  certain  persons, 
the  witness  might  properly  be  asked  whether  he  was  present  at  the 
place  where  and  time  when  the  accused  was  placed  in  arrest  by  a  cer- 
tain officer  for  not  carrying  out  a  certain  order.  The  witness  having 
answered  in  the  affirmative,  he  may  be  asked  to  state  all  the  cir- 
cumstances. 

(3)  When  the  witness  appears  to  be  hostile  to  the  party  calling  him 
or  is  manifestly  unwilling  to  give  evidence. 

(■4)  "When  there  is  an  erroneous  statement  in  the  testimony  of  the 
witness,  evidently  caused  by  want  of  recollection,  which  a  suggestion 
may  assist,  as,  for  instance,  where  he  misstates  a  date  or  an  hour. 

(5)  Where,  from  the  nature  of  the  case,  the  mind  of  the  witness 
can  not  be  directed  to  the  subject  of  the  inquiry  without  a  particular 
specification  of  it  as  where  he  is  called  to  contradict  another  witness 
who  has  testified  that  the  accused  made  a  certain  statement  on  a 
certain  occasion  in  the  hearing  of  a  number  of  soldiers,  each  of  them 
may  "be  asked  whether  he  heard  the  accused  make  the  statement. 

The  court,  in  its  discretion,  would  be  justified  in  allowing  liberal 
departures  from  the  rule. 

255.  Recalling'  of  witnesses. — Where  a  witness  is  recalled  to  the  wit- 
ness stand  he  will  not  be  sworn  again,  but  will  be  reminded  that  he 
has  been  sworn  in  the  case  and  is  still  under  oath.  A  failure  to  so 
remind  him,  however,  does  not  affect  the  validity  of  the  trial  and 
will  not  be  ground  for  rejecting  the  testimony. 

Section  VI. 
CREDIBILITY   OF  WITNESSES. 

256.  What  credibility  consists  in. — The  credibility  of  a  witness  is  his 
worthiness  of  belief,  and  is  determined  by  his  character.'  by  the  acute- 
ness  of  his  powers  of  observation,  the  accuracy  and  retentiveness  of 
his  memory,  by  his  general  manner  in  giving  evidence,  his  relation  to 
the  matter  in  issue,  his  appearance  and  deportment,  prejudices,  by 
his  general  reputation  for  truth  and  veracity  in  the  community  where 
he  lives,  by  comparison  of  his  testimony  with  other  statements  made 
by  him  out  of  court,  by  comparison  of  his  testimony  with  that  of 
others,  etc.    From  all  these  the  court  will  draw  its  own  conclusions  as 


126  MANUAL  FOB  OOUTLTS-MABTIAL. 

to  the  credibility  of  the  witness,  attaching  only  such  weight  to  his 
,-  all  fche  fa  to  warrant.    There  may  even  be  cases  in 

court  will  reject  all  the  testimony  of  a  witness.    This  i 

set  forth  above.    No  statement  will  be  made 
lurt  of  the  weight  given  to  any  testimony  or  the  amount  re- 
•  inform  the  reviewing  authority  of 
which  have  led  to  its  findings. 

257.  Proof  of  character  by  general  reputation. — Where  impeachment 
witness  for  bad  character  is  undertaken  it  must  be  limited  to 

eneral  reputation  for  truth  and  v<  the  com- 

munity in  which  he  lives.    For  a  military  man  this  would  mean  the 

t  he  bore  amongst  the  a  of  his  regiment  or  com- 

pnn;  mgst  those  stationed  at  a  •    if  stationed  at  or 

gst  the  residents  of  the  town.  Personal  observa- 
tion as  to  his  character  is  not  admissible. 

258.  Conviction  of  crime. — Evidence  of  the  conviction  of  any  cri 
even  by  a  tribunal  and  whether  felony  or  misdemeanor,  is 
admi  the  purpose  of  diminishing  the  credit  due  to  his  testi- 
mony. (1  Greenleaf,  sec.  876.)  It  is  allowable  to  ask  a  witness  on 
cross-examination  whether  he  has  ever  been  convicted  of  a  crime,  but 
if  he  denies  it,  proof  may  only  be  made  by  copy  of  the  record  of  hie 
conviction. 

259.  Self-contradiction. — Proof  may  be  offered  of  inconsistent  state- 
ments made  by  the  witness  on  specific  facts,  but  on  collateral  facts 
the  inconsistency  can  not  be  evidenced  by  calling  other  witnesses  to 

;  P-contradictory  assertion. 
Where,  on  cross-examination,  a  witness  is  questioned  as  to  his  self- 
contradictory  statements,  his  attention  should  be  called  to  the  time, 
place,  and  surrounding  circumstances  and  to  the  person  to  whom  he 
■  lined  to  have  made  the  contradictory  statements. 
Where  the  contradictory  statement  is  contained  in  a  writing,  it 
need  not  be  shown  to  the  witness  before  questioning  him  about  it. 

260.  Prejudice,  bias,  etc. — Prejudice,  bias,  relationship,  etc.,  may  be 
shown  to  diminish  the  credibility  of  the  witness,  cither  by  the  testi- 
mony of  other  witnesses  or  by  cross-examination  of  the  witness  him- 

.    Such  matters  are  never  regarded  as  collateral. 

261.  Credibility  of  accused  as  a  witness. — If  the  accused  testifies,  his 
credibility  '  88  may  be  attacked  on  any  of  the  grounds  stated 
in  the  preceding  paragraphs. 

262.  Proof  of  contradictory  statements  out  of  court. — The  strict  rule 
is  that,  before  testimony  can  be  admitted  to  prove  that  a  witness  ha* 
made  out  of  court  statements  that  are  in  conflict  with  his  testimony 
in  court,  a  foundation  therefor  must  be  laid  by  asking  the  witness 
on  cross-examination  whether  he  has  not  made  on  a  certain  occasion 
at  a  certain  time  or  under  certain  circumstances  the  alleged  contra- 


EVIDENCE.  127 

dictory  statement.  If  the  witness  admits  making  such  a  contradic- 
tory statement  he  will  be  permitted  to  explain  it.  If  he  denies  mak- 
ing it,  evidence  may  be  introduced  to  prove  it. 

262J-.  Impeachment  of  one's  own  witness. — The  general  ride  is  that  a 
party  can  not  impeach  his  own  witness.    This  is  subject  to  but  few 
ptions;  as,  where  a  party  is  compelled  to  call  a  witness  whom  the 
law  makes  indispensable,  or  where  a  witness  proves  unexpectedly 
tile  or  treacherous  in  his  testimony  on  the  stand.     Tu  pted 

3  the  impeaching  party  must  first,  show  that  the  evidence  as  £  ,. 
has  taken  him  by  surprise,  and  that  the  witness  is  hostile.  The  wit- 
may  then  be  asked  if  he  has  made  contradictory  statements  out 
of  court,  the  time,  place,  and  circumstances  of  the  statement  being  de- 
scribed to  him  in  detail,  and  upon  his  denial,  witnesses  may  he  called 
in  proof  that  he  did  make  them.  In  order  that  one's  own  witness  may 
Qtradicted,  mere  silence  or  ignorance  on  his  part  is  not  sufficient. 
While  a  party  taken  by  surprise  may  impeach  his  own  witness  in  the 
cases  indicated,  he  is  not  permitted  to  attack  his  reputation  by  show- 
ing that  his  general  character  is  bad.      (C.  3f.  C.  J/.,  No.  4-) 

Section  VII. 
DEPOSITIONS  AND  FORMER  TESTIMONY. 

263.  Depositions  admissible. — Depositions  taken  under  the  provision 
of  A.  W.  25  and  26  "may  be  read  in  evidence  before  any  military 
court  or  commission  in  any  case  not  capital  or  in  any  proceeding 
before  a  court  of  inquiry  or  a  military  court." 

264.  Depositions  for  defense  in  capital  cases. — Deposition  testimony 
may  be  adduced  for  the  defense  in  capital  cases.  (A.  W.  2G.)  Where 
the  defense  calls  for  imbny  in  capital  cases  the  witnesses  may 

Eamined  as  fully  as  witnesses  in  a  case  not  capital. 

265.  Objections  as  to  competency  of  witness  and  admissibility  of  evi- 
dence.— The  same  rules  as  to  competency  of  witnesses  and  admis- 
sibility of  evidence  apply  in  the  taking  of  evidence  by  deposition 
that  apply  in  the  examination  of  a  witness  before  the  court,  except 
that  a  wider  latitude  than  usual  should  be  allowed  as  to  leading 

ions. 

If  the  interrogatories  and  cross-interrogatories  for  depositions  are 
prepared  for  acceptance  by  the  court,  in  open  session,  objection  to 
the  competency  of  the  deponent,  if  grounds  of  objection  are  known 
at  the  time,  as  well  as  objections  to  questions,  should  be  raised  at 
such  session,  and  ordinarily  be  passed  upon  by  the  court  at  that  time. 
The  court  should,  however,  in  the  interests  of  justice,  entertain  such 
objections  when  the  depositions  are  offered  in  evidence,  but  might 
in  :i  proper  case  call  upon  judge  advocate  or  counsel  for  explanation 
as  to  why  they  had  failed  to  make  the  objection  at  the  proper  time. 

If  the  interrogatories  and  cross-interrogatories  are  agreed  upon  by 
both  parties  in  advance  of  the  assembling  of  the  court—and  this  is 


128  manual  i  <»i:  conns  maktiai.. 

tlic  usual  practice — objections  to  questions  and  to  the  admissibility 
of  evidence  "will  be  made  when  the  depositions  are  offered  in  evidence. 

266.  Examination  of  deposition  by  counsel. — Upon  receipt  of  the 
deposition  the  judge  advocate  will  advise  the  accused  or  his  counsel  of 
that  faci  and  will  give  them  an  opportunity  to  examine  the  deposi- 
tion before  the  trial. 

267.  Heading  of  depositions. — Ordinarily  depositions  will  be  read  to 
the  court  by  the  party  in  whose  behalf  they  are  taken,  but  if  the 
accused  is  not  represented  by  counsel  the  judge  advocate  will  read 
to  the  court  the  deposition  taken  on  his  behalf,  unless  the  accused 
requests  i<>  read  them.  After  being  read  to  the  court  a  deposition 
■will  be  properly  marked  for  identification  purposes  and  attached 
to  the  record,  and  the  record  will  show  that  it  has  been  introduced 
and  read  to  the  court. 

268.  Miscellaneous  provisions  as  to  depositions. — The  party  at  whose 
instance  a  deposition  has  been  taken  should  not  be  permitted  to 
introduce  only  such  parts  of  the  deposit  ion  as  are  favorable  to  him 
or  a-  he  may  elect  to  use:  he  must  offer  the  deposition  in  evidence 
as  a  whole  or  not  offer  it  at  all.  If  the  party  at  whose  instance  a 
deposition  has  been  taken  decides  not  to  put  it  in,  it  may  be  put  in 
e\  idence  by  the  other  party. 

269.  Affidavits  not  admissible. — Affidavits  taken  without  notice  and 
not  as  depositions  under  the  provisions  of  A.  W.  25  and  20  arc  in  no 
case  admissible  as  evidence  unless  expressly  consented  to  b}T  the  judge 
advocate  and  the  accused  with  full  knowledge  of  his  rights. 

270.  Certificate  of  discharge. — The  "  certificate  of  discharge  "  may  be 
used  by  the  defense,  either  before  or  after  the  findings,  for  proof  of 
good  character. 

271.  Statement  of  service. — The  statement  of  service  and  number  of 
previous  convictions  of  the  accused,  as  found  in  the  upper  quarter 
of  the  front  page  of  the  charge  sheet,  will  not  be  permitted  to  be  seen 
or  examined  by  members  of  the  general  or  special  court-martial  try- 
ing a  soldier  until  after  they  have  reached  their  findings.  In  the 
event  of  conviction  the  accused,  if  a  soldier,  will  be  asked  whether 
such  statement  of  service  is  correct,  and  such  statement  will  be 
examined  and  considered  by  the  court  for  the  purpose  of  determining 
proper  punishment  in  view  of  length  of  service. 

The  statement  of  service  may  lie  used  by  the  defense,  either  before 
or  after  the  findings,  for  proof  of  good  character. 

272.  Former  testir.  any  before  court  of  inquiry. — The  record  of  the 
proceedings  of  a  <••"  -i  of  inquiry  may  be  read  in  evidence  before  any 
court-martial  or  military  commission  in  any  case  not  capital  nor 
extending  to  the  dismissal  of  an  officer,  and  may  also  be  read  in  evi- 
dence in  any  proceeding  before  a  court  of  inquiry  or  a  military 
board:  Provided,  Thai  such  evidence  may  be  adduced  by  the  defense 
in  capita]  cases  or  cases  extending  to  the  dismissal  of  an  officer. 
(A.  W.  27.) 


EVIDENCE.  129 

The  ends  of  justice  would  require  that  the  reasonable  tests  for 
admissibility  laid  down  in  par.  275,  as  to  examination  and  cross- 
examination  on  th.e  same  issues  and  as  to  correctness  and  complete- 
ness of  the  record  where  former  testimony  before  civil  court-  and 
courts-martial  is  offered,  should  be  applied  as  to  the  admission  of 
the  record  of  a  court  of  inquiry. 

273.  Evidence  of  pardon. — When  a  special  plea,  in  bar  of  trial,  based 
on  a  pardon,  is  ottered  by  the  defense,  the  best  evidence  of  such  par- 
don, if  in  the  nature  of  an  individual  pardon,  will  be  the  document 
signed  by  the  President  himself,  and,  if  in  the  nature  of  a  general 
amnesty,  by  an  official  copy  of  the  proclamation  or  order  publishing 
such  amnesty.  If  such  document  or  order  is  not  sufficiently  explicit 
to  determine  whether  or  not  the  offense  for  which  the  accused  is  on 
trial  is  the  same  as  that  covered  by  the  pardon,  then  other  evidence 
must  be  introduced  to  fill  the  gap.  Where  the  pardon  is  in  the  nature 
of  a  constructive  pardon,  the  evidence  will  be  of  such  facts  and  cir- 
cumstances as  it  is  contended  constitute  such  pardon. 

274.  Evidence  of  former  trial  by  court-martial  or  civil  court. — Where 
a  plea  in  bar  of  trial,  based  on  a  former  trial  by  court-martial  for 
the  same  offense  and  conviction  or  acquittal  of  the  same,  is  offered 
for  the  defense  the  best  evidence  of  such  conviction  or  acquittal  will 
be  the  order  of  the  reviewing  authority  publishing  the  case.  Where 
such  order  is  not  biifficiently  explicit  to  determine  whether  or  not  the 
offense  for  which  the  accused  is  on  trial  is  the  same  as  that  the  con- 
viction or  acquittal  of  which  he  pleads  in  bar,  then  the  original  court- 
martial  record  should  be  offered  in  evidence. 

Where  a  plea  in  bar  is  on  a  former  trial  and  conviction  or  acquittal 
by  a.  Federal  court — the  action  of  a  State  or  any  other  than  a  Federal 
court  does  not  operate  as  a  bar  to  second  trial — the  best  evidence  of 
such  conviction  or  acquittal  will  be  a  duly  certified  copy  of  the  in- 
dictment and  findings  and  conviction  or  acquittal,  given  by  the  pub- 
lic officer  wlipse  duty  it  is  to  keep  the  original. 

275.  Former  testimony  in  civil  courts  and  courts-martial. — Where  a 
witness,  wh/>  has  testified  in  either  a  Federal  or  State  court  at  a 
former  trial  on  the  same  issues  raised  in  the  case  on  trial  and  was 
fully  examined  and  cross-examined,  is  dead  or  is  beyond  the  reach 

be  process  of  the  court  and  his  personal  attendance  can  not  be 

secured,  then  the  stenographic  repori  of  bis  testimony,  if  proven  to 

be  correct  and  complete  by  the  person  by  whom  it  was  reported,  will 

ible  and  may  very  properly  be  accorded  the  same  weight  as 

a  deposition  duly  taken  on  notice.     (Chicago,  St.  P.,  M.  &-0.  Ry.  I  !o. 

[yers,  SO  Fed  Rep.,  361,  365.)    Ordinarily,  hov  situation 

should  be  met  by  the  judge  advocate  and  couns<  1  for  accused  procur- 
ing in  advance  of  trial  a  rapher's  notes,  duly 
sworn  toby  him  as  corred  and  complete,  and  submitting  it  to  the 
opposite  party  for  his  inspection.  J  i'  acknowledged  to  be  corred  and 
complete,  then  such  transcript  will  be  received  in  evidence, 

53915°— IS 10 


130  MANUAL    FOB   OOUBTS  MARTIAL. 

Where  the  testimony  d  who  had  testified  in  a 

former  trial  by  court-martial,  all  conditions  being  approximately  the 
as  those  cited  in  the  firs!  paragraph  of  this  section,  the  original 
court-martial  record  itself  will  be  admissible,  and  the  stenographic 
reporter  will  only  be  called  where  a  question  is  raised  as  to  the  cor- 
rectness or  completeness  of  the  recorded  testimony.' 

[ON  VIII. 
PRESUMPTIONS. 

276.  Presumptions. — Presumptions  constitute  a  large  part  of  tho 
law  of  evidence.  They  are  of  two  kinds — presumptions  of  Law  and 
presumptions  of  fact. 

277.  Presumptions  of  law. — Broadly  speaking,  a  presumption  of  law 
is  a  rule  of  law  that  when  certain  circumstai  the  court  must 

me  certain  other  circumstances.  Presumptions  of  law  are  di- 
vided into  conclusive  and  disputable  presumptions.  In  case  of  a  con- 
clusive presumption  of  law  the  presumption  can  not  be  contradicted. 
For  example,  all  residents  of  a  country  are  conclusively  presumed  to 
know  its  laws.  This  presumption  is  in  force  in  the  practice  of 
courts-martial  so  far  as  concerns  offenses  that  constitute  civil  crh 
(As  to  the  modification  of  the  rule  as  regards  knowledge  of  the 
Articles  of  War  in  case  of  recruits,  see  par.  282  ;  as  to  intent,  par.  281 ; 
i  ignorance  of  law,  par.  2*2.)  In  case  of  a  disputable  presumption 
of  law,  the  presumption  can  be  contradicted.  For  example,  it  is 
presumed  that  a  sane  person  intends  the  natural  and  probable  conse- 
quences oi  •  a  person  is  presumed  to  be  innocent  until  proven 
guilty;  all  persons  are  presumed  to  be  sane;  persons  acting  as  public 
rs  are  presumed  to  be  legally  in  office  and  to  properly  perform 
their  duties;  and  malice  is  presumed  from  the  use  of  a  deadly 
weapon.     Evidence  may  be  introduced  to  rebut  such  presumptions. 

278.  Presumptions  of  fact. — Presumptions  of  fact  arc  nothing  more 
than  logical  inferences,  from  facts  already  proved,  as  to  the  existence 
of  other  facts.  This  kind  of  a  presumption  is  not  made  as  a  rule  of 
law  but  as  a  matter  of  human  reason.  All  evidence  in  a  ca.-e,  ex- 
cept that  which  directly  proves  the  allegations  in  the  specifications, 

at  once  to  presumptions  of  fact.     Such  presumptions  are  the 
■  of  all  circumstantial  evidence.     (Sec  par.  204.)     It  is  in  mak- 
ing such  presumptions  that  the  members  of  the  court  should  espe- 
cial! their  common  sense  and  their  knowledge  of  human 
nature  and  the  E  the  world.     Facts  in  evidence  showing  a 
i,k  tive  or  absence  oi"  motive  on  the  part  of  the  accused,  preparations 
or  the  absence  of  preparations  Tor  the  commission  of  crime,  a  failure 
to  account  for  suspicious  cir<  showing  a  criminal  con- 
usness  (as  concealment,  disguise,  or  flight),  the  suppression  of 
evidence,  the  possession  of  weapons  or  instruments  that  might  have 
used  in  the  commission  of  the  offense,  the  possession  soon  after 
larceny  or  embezzlement  of  the  articles  stolen  or  embezzled,  are  a 
proper  basis  for  presumptions  of  fact. 


EVID1  131 

Also  where  the  existence  at  one  time  of  a  certain  condition  or  shite 
of  tilings  of  a  continuing  nature  is  shown,  the  general]  presumption 

S  that  such  condition  or  state  coiuinues  to  exist,  until  the  i 
trarv  is  shown,  so  long  as  is  usual  with  conditions  or  things  of  thai 
particular  nature.  For  example,  bere  is  a  presumption  of  continu- 
ance as  to  one's  residence,  until  a  change  is  shown,  also  that  one 
holding  an  office  continues  to  hold  it  until  the  end  of  the  term  Ear 
which  appointed  or  elected  and  that  personal  habits  have  not 
changed.  There  is  a  presumption  of  fact  from  the  regular  course 
of  business  in  the  Post  Office  Department  that  a  letter  when  properly 
deposited  in  a  post-office  box  or  in  the  place  in  which  letters  for  mail- 
ing arc  usually  deposited,  postage  prepaid,  is  received  by  the  ad- 
see.  The  presumption  w^th  regard  to  the  delivery  of  letters 
duly  posted  has  been  extended  and  applied  to  the  delivery  of  tele- 
grams deposited  with  a  telegraph  company  for  transmission;  but 
delivery  of  the  message  to  the  telegraph  company  must  of  coi 
be  shown.  There  is  also  a  presumption  of  fact  that  persons  of  the 
same  name  are  the  same  person.  The  strength  of  this  presumption 
will  of  course  depend  upon  how  common  the  name  is  and  other  cir- 
cumstances. 

279.  Prima  facie  evidence. — Prima  facie  evidence  is  that  which  suf- 
fices for  the  proof  of  a  particular  fact  until  contradicted  and  over- 
come by  other  evidence.  In  other  words,  prima  facie  evidence  justi- 
fies the  court  in  finding  the  facts  presumed,  but  in  view  of  the  doc- 
trine of  reasonable  doubt  that  always  inures  to  the  benefit  of  the 
accused  from  a  consideration  of  all  of  the  evidence  presented  the 
court  is  not  required  to  find  the  facts  presumed.  The  court  i 
decide,  for  instance,  that  the  prima  facie  evidence  presented  docs  not 
outweigh  the  presumption  of  innocence. 

280.  Intent  in  connection  with  crimes. — In  respect  to  the  element  of 
intent,  crimes  are  distinguished  as  follows r  Those  in  which  a  dis- 
tinct and  specific  intent,  independent  of  the  mea  mtia! 
to  constitute  the  oifensc,  as  murder,  larceny,  burglary,  desertion,  and 
mutiny :  and  those  in  which  the  act  is  the  pri                   I  ure.  the  exi^t- 

of  the  wrongful   intent  being  simply  inferable  therefrom,  as 
rape,  perjury,  sleeping  on  post,  drunkenness  on   duty,  neglect    of 
duty.    In  cases  of  the  former  class  the  characteristic  intent  ran 
established  affirmatively  as  ■  fact;  in  the  bitter  class  of 

y  to  prove  the  unlawful  act,  tor  every  man 
is  presumed   in  lav;  to  1.  -led   to  do  what  he  actually 

and  the  burden  of  proof  is  upon  him  to  -how  the  contrary.      I  Win- 
throp,  p.  i  i 

881.  Intent  in  military  cases.— Military  offenses  being  created  by 
statute,  the  peculiar  statutory  intent  described  in  the  article,  if  there 
1-  one,  must  be  alleged  in  the  specification.  The  enlistments  pro- 
hibited in  A.  AV.  .".I.  Jo,-  example,  must  have  heen  "  knowingly  •' 
made  in  order  to  constitute  an  offense  under  the  statute,     ll   is  simi- 


132  MANUAL   FOB  OOUKTS-MAETIAL. 

larly  essential  to  some  of  the  offenses  described  in  .'v.  W.  55,  §6,  and 
57  that  thej  be  "knowingly"  committed;  offenses  under  A.  W.  83 
and  84  must  have  been  committed  "willfully "or " through neglect  '; 
an  officer  quitting  his  post  on  tender  of  resignation  must  do  so  "  with 
intent  tn  absent  himself  permanently  therefrom"  to  be  triable  for 
the  offense  described  in  A.  W.  28;  and  an  officer  who  refuses  or 
"willfully  neglects"  to  deliver  an  offender  to  the  civil  authorities 
upon  application  duly  made  by  such  authorities  subjects  himself 
by  such  refusal  or  willful  neglect  to  the  penalties  set  Eorth  in 
A.  W.  74.  (Davis,  642.)  In  some  instances,  however,  as  in  the 
offenses  described  in  A.  W.  61  and  86,  no  statutory  intent  is  set 
forth  in  the  article,  and  none  need  be  alleged  in  the  specifications. 
In  other  cases,  while  no  intent  is  embodied  in  the  article,  a  particular 
intent  is  necessary  to  the  completeness  of  the  offense,  and  though 
not  set  forth  in  the  specification  must  be  established  in  evidence. 
Such  is  the  case  with  respeel  to  the  offense  of  desertion,  the  intent 
being  not  to  return.  But  whether  the  intent  that  is  presumed  from 
the  commission  of  an  unlawful  act  or  the  specific  one  that  mil. 
proved  raises  a  point  in  issue  the  accused  in  his  defense  may  prove 
there  was  actually  no  intent.  If  the  accused  can  substantiate  such 
a  defense,  he  must  be  acquitted  or  the  grade  of  th^  offense  reduced, 
For  instance,  from  assault  with  intent  to  kill  to  assault.  The 
usual  defenses  of  this  character  in  military  practice  ranee 

of  military  law.  ignorance,  of  fact,  drunkenness,  and  insanity. 

282.  Ignorance  cf  law. — Every  person  is  usually  presumed  to  know 
the  ;  of  Federal,  State,  and  municipal  law  applicable  to  the 

community  in  which  he  lives,  and  a  person  subject  to  military  law 
resumed,  in  addition  thereto,  to  know  the  statute  law.  as  particu- 
larly applicable  to  the  Army,  a-  well  as  Army  regulations,  the  differ- 
ent manuals,  orders,  and  circulars  issued  for  the  information  and 
eminent  of  the  Army.  This  reallj  means  that  on  grounds  of 
public  policy  a  person  is  responsible  whether  he  knows  the  law  or 
not.    His  ignorance  is  immaterial. 

An  exception  may  .sometimes  be  made  where  enlisted  men  are 
charged  with  the  knowledge  of  the  Articles  of  War.  This  exception 
would  be  based  primarily  upon-  the  fact  that  A.  AV.  110  makes  i 
of  the  features  of  enlistments  into  the  military  service  that  certain 
of  i lie  "Articles  of  War  shall  be  read  to  every  enlisted  man  at  the 
time  of,  or  within  six  days  after,  his  enlistment."  A.  TV.  109  enjoins 
that  he  shall  take  an  enlistment  oath  in  which,  among  other  thing-. 
he  -wears  that  he  will  observe  and  obey  military  orders  "according 
to  the  rules  and  Articles  of  War."*  While  in  the  case  of  an  old  or 
who  had  been  for  a  considerable  period  in 

the  service  and  had  had  a  sufficient  opportunity  to  inform  himself  as 

to  tic  provisions  of  the  code,  a   failure  to  have  complied  with  the 

injunction  of  this  article  could   scarcely   constitute   a   defense,  such 


EVIDENCE.  133 

failure  might  perhaps  have  this  effect,  or  should  usually  at  least  act 
as  an  extenuation  in  the  case  of  a  recruit,  especially  one  imperfectly 
acquainted  with  the  English  language.  In  such  a  case  it  would  cer- 
tainly be  admissible  for  the  accused  to  show  the  fact,  and  if  the 
offense  charged  was  one  of  the  criminality  of  which  he  could  not, 
in  his  ignorance  of  military  law,  have  been  aware,  or  the  gravity  of 
which  ho  could  not  have  appreciated,  the  omission  of  the  reading  of 
the  articles  upon  his  enlistment  would  properly  be  regarded  by  the 
court,  if  not  as  a  defense,  certainly  as  a  palliation  of  his  misconduct. 
(Winthrop,  p.  438.) 

283.  Ignorance  of  fact. — It  is  generally  laid  down  that  ignorance  of 
fact  excuses  crime.  But  this  must  be  an  honest  or  innocent  ignor- 
ance and  not  an  ignorance  which  is  the  result  of  carelessness  or  fault. 
The  theory,  of  course,  is  that  where  a  bona  fide  ignorance  of  fact 
exists  there  would  be  an  absence  of  the  requisite  wrongful  intent. 
The  general  rule  applies  equally  to  military  cases,  and  the  ignorance, 
to  constitute  a  defense  therein,  must  appear  not  to  have  proceeded 
from  any  want  of  vigilance,  or  from  failure  to  make  the  inquiries  or 
obtain  the  information  reasonably  called  for  by  the  obligations  and 
usages  of  the  service.  Thus  a  soldier  who  neglects  to  report  for 
guard  or  other  duty  because  ignorant  of  the  fact  that  he  has  been 
duly  detailed  therefor  is  not  guilty  of  a  breach  of  A.  W.  61  unless 
his  ignorance  is  a  result  of  his  own  neglect  or  wrongdoing  (Win- 
throp, p.  436)  ;  and  if  the  soldier  should  disobey  an  order  given  to 
him  by  an  officer  in  civilian  clothing  without  the  officer  having  first 
stated  to  the  soldier  that  he  was  an  officer,  where  the  soldier  did  not 
know  that  he  was  an  officer  nor  have  reason  to  believe  that  he  was 
an  officer,  then  his  ignorance  would  be  excuse  for  his  act  of  diso- 
bedience which  might  otherwise  have  been  a  very  serious  offense.  Of 
course,  a  soldier  is  presumed — it  is  his  duty — to  know  the  officers  of 
his  command  where  reasonable  time  and  opportunity  after  joining 
the  command  are  shown  to  have  existed  for  this  purpose. 

[Note. — See  Insanity  of  accused,  par.  219.] 

284.  Evidence  of  desertion. — Absence  without  leave  is  usually  proved 
by  the  evidence  of  an  officer  or  noncommissioned  officer  of  the  com- 
pany of  the  accused  to  the  effect  that  he  was  absent  from  his  organi- 
zation without  authority  for  a  certain  period,  but  if  such  witn< 
are  not  available  it  may  be  proved  by  the  entries  on  the  muster  toils. 
[n  making  the  hitter  kind  of  proof,  that  portion  of  the  muster  roll 
relating  to  the  accused,  or  a  copy  of  it  certified  by  the  officer  having 
official  custody  thereof,  showing  the  accused  was  absent  without 
leave,  beginning  a  certain  date,  and  (if  such  is  the  case)  was  dropped 
as  a  deserter,  should  be  attached  to  the  proceedings  as  an  exhibit. 
But  the  muster  roll,  even  though  it  refers  t->  the  accused  as  a  -  de- 
serter," is  not  complete  evidence  of  desertion;  it  is  evidence  only  of 


134  MANUAL   FOR   COURTS-MARTIAL. 

■bsence  without  leave,  and  it  is  still  necessary  for  the  judge  advocate 
to  prove  an  intent  be  remain  permanently  absent;  that  is.  to  desert. 

The  eondhion  of  absence  without  leave  having  once  been  shown  to 
will  be  presumed  to  continue  in  the  absence  of  evidence  to  the 
contrary  until  the  ;  oe  again  under  military  control.    It  is 

to  prove  only  that  the  accused  went  abeenl  with 
out  leave  a  certain  date  and  came  under  military  control  a  certain 
date.     During  the  intermediate  time  it  is  presumed  he  was  absent 
without  leave. 

II*  th«'  condition  of  absence  without,  leave  is  much  prolonged,  and 
there  is  no  otismctory  explanation  of  it,  the  court  may  be  justi 
in  presuming  from  that  alone  an  intent  to  remain  permanently  ab- 
sent. The  presumption  of  suoh  intent  will  b  gthened  by  such 
circumstances  as  that  the  accused  attempted  to  dispose  of  his  uni- 
form or  other  property;  that  substantially  all  his  clothes  were  miss- 
ing from  his  locker  when  his  absence  was  discovered  ;  that  his  civilian 
clothes  were  missing;  that  he  attempted  to  board  a  train  that  took 
him  away  from  his  station;  that  he  purchased  a  ticket  for  a  distant 
point  or  was  arrested  or  surrendered  at  a  considerable  distance  from 
his  station;  that  while  absent  he  was  in  the  neighborhood  of  military 
posts  and  did  not  surrender  to  the  military  authorities;  that  he  was 
dissatisfied  in  his  company  or  with  the  military  service;  that  he  had 
made  remarks  indicating  an  intention  to  desert  the  service;  that  he 
v. as  under  charges  or  had  escaped  from  confinement  at  the  time  he 
absented  himself;  that  just  previous  to  absenting  himself  he  stole 
or  took  without  authority  money,  civilian  clothes,  or  other  property 
that  would  assist  him  in  getting  away.  etc. 

On  the  other  hand,  such  incidents  are  not  always  inconsistent  with 
a  guilt  of  mere  absence  without  leave.  They  should  be  carefully 
weighed  by  the  court.  Previous  excellent  and  long  service,  the  fact 
that  none  of  the  property  of  the  accused  was  missing  from  his  locker, 
and  the  fact  that  he  was  under  the  influence  of  intoxicating  liquor 
or  drugs  when  1m-  absented  himself,  and  that  he  continued  for  some 
time  under  their  influence,  etc.,  are  incidents  geing  to  show  there  was 
not  an  intent  to  remain  permanently  absent. 

The  fact  that  .1  reward  has  been  paid  for  the  apprehension  of  the 
accused  as  b  deserter  neither  proves  nor  disproves  an  intent  to  desert. 
So  idso  the  opinions  of  witnesses  as  to  whether  the  accused  intended 
to  desert  and.  statements  from  them  that  the  accused  is  a  "  deserter  "  or 
"deserted"  are  not  only  incompetent,  but  are  valueless  for  any 
purpose  (o  prove  desertion. 

(a)  Statutory  rules  <  . — A.  YV.  28  provides  that  it  shall  be 

sufficient  proof  of  the  offense  of  desertion  by  an  officer  that,  having 
tendered  his  resignation  and  prior  to  due  notice  of  the  acceptance  of 
the  same,  he  quits  his  post  or  proper  duties  without  leave  and  with 
intent  to  absent  himself  permanently  therefrom.     And  similarly  in 


EVIDENCE.  135 

the  case  of  a  soldier,  A.  W.  "20  provides  that  it  shall  be  sufficient  proof 
of  desertion  in  his  case  when  it  is  proved  that,  without  having  first 
received  a  regular  discharge,  he  again  enlists  in  the  Army  or  in  the 
militia  when  in  the  service  of  the  United  States,  or  in  the  Navy  or 

Marine  Corps  of  the  United  Sfcato  S,  or  in  any  foreign  army;  and  shall 
be  further  proof  of  fraudulent  enlistment  where  the  enlistment  is  in 
one  of  the  forces  of  the  United  States  mentioned  above. 

285.  Drunkenness  as  showing-  absence  of  intent. — It  is  a  general  rule 
of  law  that  voluntary  drunkenness  is  oot  an  excuse  for  crime- com- 
mitted in  that  condition.  But  the  question  whether  or  not  the  ac- 
cused was  drunk  at  the  time  of  the  commission  of  the  criminal  act 
may  be  material  as  going  to  indicate  what  species  or  kind  of  offense 
was  actually  committed.  Thus,  there  are  crimes  which  can  be  con- 
summated only  where  a  peculiar  and  distinctive  intent  or  a  conscious 
deliberation  or  premeditation  has  concurred  with  the  act  which  could 
not  well  be  possessed  or  entertained  by  an  intoxicated  person.  In 
such  cases  evidence  of  the  drunken  condition  of  the  party  at  the  time 
of  the  commission  of  the  alleged  crime  is  held  admissible,  not  to 
excuse  or  extenuate  the  act  as  such,  but  to  aid  in  determining  whether, 
in  view  of  the  state  of  his  mind,  such  act  amounted  to  the  specific 
crime  charged  or  which  of  two  or  more  crimes  similar  but  distin- 
guished in  degree  it  really  was  in  law.  Thus,  in  cases  of  such  offenses 
as  larceny,  robbery,  burglary,  and  passing  counterfeit  money,  which 
require  for  their  commission  a  certain  specific  intent,  evidence  of 
drunkenness  is  admissible  as  indicating  whether  the  offender  was 
capable  of  entertaining  this  intent  or  whether  his  act  was  anything 
more  than  a  mere  battery,  trespass,  or  mistake.  So,  upon  an  indict- 
ment for  murder,  testimony  as  to  the  drunkenness  of  the  accused  at 
the  time  of  the  killing  may  ordinarily  be  admitted  as  indicating  a 
mental  excitement,  confusion,  or  unconsciousness  incompatible  under 
the  circumstances  of  the  case  with  premeditation  or  a  deliberate  in- 
tent to  take  life  and  as  reducing  the  crime  to  the  grade  of  man- 
slaughter. On  the  other  hand,  where,  to  constitute  the  legal  crime, 
there  is  required  no  peculiar  intent — no  wrongful  intent  other  than 
that  inferable  from  the  act  itself— as  in  cases  of  assault  and  battery, 
rape,  or  arson,  evidence  that  the  offender  was  intoxicated  would, 
strictly,  not  be  admissible  in  defense.     (Winthrop,  p.  440.) 

Where  drunkenness  is  pleaded  as  an  excuse  for  crime  Buch  excuse 
should  be  received  with  caution.     Drunkenness  is  easily  simulated. 
It  is  sometimes  resorted  to  for  the  purpose  of  stimulating  the  oi 
to  the  point  of  committing  the  act.    Where  premutation  and  intent 
first  exist,  followed  by  voluntary  drunkenness  and  the  oommif 
of  the  crime  during  such  state  of  dmnkannesB,  the  accessary  u 
to  commit  the  crime  will  be  presumed,  whatever  the  state  of  drunk 
enness  at  the  time  of  its  commission  may  have  been. 


136  MANUAL   FOR   COURTS- MARTIAL. 

286.  Drunkenness  in  military  cases. — In  military  cases,  the  fact  of 
the  drunkenness  of  the  accused,  as  indicating  his  state  of  mind  at 
the  time  of  the  alleged  offense,  whether  it  may  be  considered  as 
properly  affecting  the  issue  to  be  tried,  or  only  the  measure  of 
punishment  to  be  adjudged  in  the  event  of  conviction,  is  in  practice 
always  admitted  in  evidence.  And  where  a  deliberate  purpose  or 
specific  intent  is  necessary  to  constitute  the  offense,  as  in  cases  of  dis- 
obedience of  orders  in  violation  of  A.  W.  64,  desertion,  mutiny, 
cowardice,  or  fraud  in  violation  of  A.  W.  94,  the  drunkenness,  if 

ilearly  shown  in  evidence  to  have  been  such  as  to  have  incapacitated 
the  party  from  entertaining  such  purpose  or  intent,  will  ordinarily 
be  treated  as  constituting  a  legal  defense  to  the  specific  act  charged. 
In  such  cases,  however,  if  the  drunken  act  has  involved  a  disorder 
or  neglect  of  duty  prejudicial  to  good  order  and  military  discipline 
the  accused  may  be  convicted  of  that  offense  under  A.  W.  9G.  (Win 
throp,  p.  411.) 

287.  Proof  of  drunkenness. — Upon  a  trial  for  drunkenness  it  is  not 
essential  to  confine  the  testimony  to  a  description  of  the  conduct  and 
demeanor  of  the  accused,  but  it  is  admissible  to  ask  a  witness  directly 
if  the  accused  "  was  drunk,"  or  for  a  witness  to  state  that  the  accused 
"  was  drunk,"  on  the  occasion  or  under  the  circumstances  charged. 
Such  a  statement  is  not  viewed  by  the  authorities  as  of  the  class  of 
expressions  of  opinion  which  are  properly  ruled  out  on  objection 
unless  given  by  experts,  but  as  a  mere  statement  of  a  matter  of 
observation,  palpable  to  persons  in  general,  and  so,  proper  to  be 
given  by  any  witness  as  a  fact  in  his  knowledge.  It  is  preferable 
that  all  witnesses  introduced  to  prove  drunkenness  should  describe 
the  conduct  and  demeanor  of  the  accused  in  addition  to  giving  their 
opinion  as  to  whether  tlie  accused  ivas  drunk. 

288.  Reasonable  doubt  and  burden  of  proof. — In  order  to  convict,  the 
court  must  be  satisfied,  beyond  a  reasonable  doubt,  that  the  accused 
is  guilty  as  charged. 

By  "  reasonable  doubt "  is  intended  not  fanciful  or  ingenius  doubt 
or  conjecture  but  substantial,  honest,  conscientious  doubt  suggested 
by  the  material  evidence  in  the  case.  It  is  an  honest,  substantial  mis- 
giving, generated  by  insufficiency  of  proof.  It  is  not  a  captious 
doubt,  nor  a  doubt  suggested  by  the  ingenuity  of  counsel  or  jury 
and  unwarranted  by  the  testimony;  nor  is  it  a  doubt  born  of  a  merci- 
ful inclination  {<>  permit  the  defendant  to  escape  conviction,  nor 
prompted  by  sympathy  for  him  or  those  connected  with  him.  The 
meaning  of  the  rule  is  that  the  proof  must  be  such  as  to  exclude  not 
every  hypothesis  or  possibility  of  innocence  but  any  fair  and  rational 
hyp.  ept  that  of  guilt;  what  is  required  being  not  an  abso- 

lute or  mathematical  but  a  moral  certainty.    A  court-martial  which 
acquits  because,  upon  the  evidence,  the  accused  may  possibly  be  inno- 


EVIDENCE.  137 

cent  falls  as  far  short  of  appreciating  the  proper  amount  of  proof 
required  in  a  criminal  trial  as  does  a  court  which  convicts  because 
the  accused  is  probably  guilty.     (Winthrop,  p.  47G.) 

In  trials  before  courts-martial  the  prosecution  has  upon  it  the 
burden  of  proving  the  guilt  of  the  accused  beyond  a  reasonable  doubt, 
and,  whatever  the  defense  of  the  accused  may  be,  this  burden  never 
changes.  After  the  evidence  is  all  in  the  court  must  be  convinced 
beyond  a  reasonable  doubt  of  every  element  necessary  to  constitute 
the  offense  in  order  to  justify  it  in  convicting  the  accused  of  the 
offense  charged. 

In  collateral  issues  arising  in  the  course  of  the  trial  as  to  the  com- 
petency of  witnesses,  the  admissibility  of  testimony,  and  the  like,  the 
burden  of  proof  rests  upon  the  party  who  alleges  incompetency  or 
objects  to  the  admission  of  particular  testimony.     (Davis,  p.  267.) 

Section  IX. 

JUDICIAL  NOTICE. 

289.  Judicial  notice. — Courts  will  recognize  the  existence  and  truth 
of  certain  matters  bearing  upon  the  issue  before  them  of  their  own 
motion  and  without  requiring  the  production  of  evidence.     Such 
acceptance  is  known  as  "taking  judicial  notice"  of  them.     This  is 
done  as  to  all  matters  of  law  and  all  facts  which  are  so  notorious 
as  to  need  no  evidence.    To  the  former  class  belong  the  laws  which 
the  court  applies  in  the  decision  of  the  cases  before  it,  including 
the  Constitution,  laws,  and  treaties  of  the  United  States,  those  of 
the  State  in  which  it  sits,  the  common  law,  and  the  law  of  nations. 
They  also  take  notice  of  the  great  seal  of  the  United  States,  those 
of  the  several  States,  the  seal  of  courts  of  record,  notaries  public, 
etc.     Under  the  latter  head  they  will  take  judicial  notice  of  the 
ordinary  divisions  of  time,  of  calendar  and  lunar  months,  of  weeks 
and  days,  and  of  the  hours  of  the  day;  of  astronomical  and  physical 
facts;  of  the  laws  of  nature,  including  their  ordinary  operations 
and  consequences;  of  the  Government  of  the  United  States  and  those 
of  the  several  States  and  their  heads;  of  war  and  peace;  and  of  the 
great  facts  of  history  as  recorded  in  the  works  of  writers  of  st 
ard  authority.     So  in  addition  all  courts-martini  will  take  jn 
notice  of  the  organization  of  the  Army,  the  statutes  relating  to  the 
Army,  the  Army  Regulations,  the  contents  of  the  several  man 
issued,  the  existence  and  situation  of  military  departments 
tions,  and  posts,  and  the  stations  of  troops  as  published  to  the  A 
the  fact  that  an  officer  belongs  to  8  certain  organization,  i 
©ral  and  special  orders,  general  court-martial  orders,  and  bull< 
of  the  War  Department  and  the  headquarte]  reral  military 

departments  may  ordinarily  be  proved  by  printed  official  copi 


138  MANUAL    FOR    (/OrilTS-MAlITTAL. 

the   usual    form.     A   court-martial    will   in   general   properly   I 
judicial  notice  of  the  printed  order  as  genuine  and  correct.    A  court 
martial,  however,  should  not  in  general  accept  in  evidence,  if  obje 

i  printed  or  written  order  which  !i  ten  made  • 

the  Army  without  esa  and  official  char 

Bcter.    Special  and  courts  will  take  judicial  notice  of 

published  '  and  post  commander.    "Where  the 

price  of  an  article  furnished  by  the  Government  is  published  to  the 
Army  in  orders,  bulletins,  or  price  lists,  it  will  not  be  necessary  to 

e  the  price,  as  the  court  will  take,  judicial  notice  of  it.  It  is 
proper,  although  not  necessary,  for  the  judge  advocate  to  state  to 

(ourt  that  the  price  as  set  out  in  the  charges  is  the  same  as  that 
fixed  by  the  order,  bulletin,  or  price  list.  If  the  court  is  uncertain 
as  to  the  fact  which  it  is  called  upon  to  notice  judicially,  it  may 
refer  to  any  person  or  to  any  document  or  book  of  reference  to 

Iv  itself  with  regard  thereto,  or  it  may  refuse  to  take  judicial 
notice  of  the  fact  unless  and  until  the  party  calling  upon  it  to  do  so 
(shall  produce  such,  document  or  book  of  reference. 


CHAPTER  XII. 

COURTS-MARTIAL— CONCLUDING  INCIDENTS  OF  THE 
TRIAL. 


Section  I:  Statements  and  arguments:  Pago. 

290.  Scope  of  statement 140 

291.  Freedom  of  expression 140 

292.  Admissions 140 

293.  Arguments 141 

Section  II:  Findings: 

294:  Voting 141 

29").  Majority  necessary  to  convict — Exception 141 

296.  Reasonable  doubt 141 

297.  General  principles  controlling  findings 141 

298.  Guilty  of  a  lesser  included  offense 142 

299.  Guilty  with  exceptions  and  substitutions 142 

300.  Substitution  of  general  for  specific  article  in  the  charge 143 

301.  Joint  charges 143 

302.  Reasons  for  findings 143 

303.  Findings  where  no  criminality  is  involved 143 

304.  Findings  under  charge  of  drunkenness 1 13 

305.  Recording  of  finding  or  sentence  by  reporter 144 

Section  III:  Previous  convictions : 

306.  Procedure  as  to  previous  convictions 144 

307.  Character  of  previous  convictions 144 

Section  IV:  Sentences: 

308.  Voting 145 

309.  Mandatory  and  discretionary  punishments 145 

310.  Sentences  for  officers 1 16 

311 .  Sentences  for  soldiers 146 

312.  Dismissal 146 

313.  Loss  of  rank 146 

314 .  Suspension  from  rank 147 

315.  Suspension  from  command 147 

316.  Suspension  from  duty 147 

317.  lino 147 

I  eprimand 147 

319.  <  'onfinement  to  limits  of  post  or  reservation 147 

320.  Dishonorable  discharge 143 

uspension  of  dishonorable  discharge 148 

onfinement  at  hard  labor 1 18 

323.  Hard  labor  without  confinement 148 

324.  Forfeiture  of  pay  and  alio   ancee 148 

325.  Courts  can  not  stop  ]                 c  of  Government  or  an  individual 118 

326.  Forfeiture  of  deposits 1 19 

139 


140  MANUAL   FOR   COURTS-MARTIAL. 

I              tV:  Si      snces    •  tontinued.  Page. 

Reduction  "f  noncommissioned  officer 149 

Detention  ot  pay 149 

:;l"j.  when  reward  for  apprehending  deserter  aol  to  be  stopped MO 

330.  Sentences  of  general  prisoners 149 

331.  Reasons  for  sentence 149 

Recommendations  to  clemency 149 

Report  to  commanding  officer  ol  result  of  trial— when  iuade__  150 


Section  I. 
STATEMENTS  AND  ARGUMENTS. 

290.  Scope  of  statement. — After  the  introduction  of  evidence  has  been 
completed  the  accused,  personally  or  by  counsel,  and  whether  or  not 
he  has  testified  as  a  witness,  may  make  an  unsworn  verbal  or  written 
statement  as  to  the  case.  If  the  statement  is  in  writing  it  should  be 
signed  by  the  accused,  or  by  counsel  in  his  behalf,  and  appended  to  the 
record.  The  statement  may  consist  of  a  brief  summary  or  version  of 
the  evidence,  with  such  explanation  or  allegation  of  motive,  excuse, 
matter  of  extenuation,  etc.,  as  the  party  may  desire  to  offer,  or  it  may 
embrace,  with  the  facts,  a  presentation  also  of- the  law  of  the  case 
and  an  argument  both  upon  the  facts  and  the  law.  (Winthrop,  p. 
450.)  Such  statement  is  not  testimony  and,  therefore,  is  not  subject 
to  cross-examination,  but  as  a  personal  defense  or  argument,  how- 
ever, it  may  and  properly  should  be  taken  into  consideration  by  the 
court.     (Digest,  p.  506  V,  H,  1.) 

291.  Freedom  of  expression. — A  large  freedom  of  expression  in  his 
Statement  to  the  court  is  allowable  to  an  accused,  especially  in  his 
comments  upon  the  evidence.  So,  an  accused  may  be  permitted  to 
reflect  within  reasonable  limits  upon  the  apparent  animus  of  his 
accuser  or  prosecutor,  though  a  superior  officer  and  of  high  rank. 
But  an  attack  upon  such  a  superior  of  a  personal  character  and  not 
apposite  to  the  facts  of  the  case  is  not  legitimate;  nor  is  language  of 
marked  disrespect  employed  toward  the  court.  Matter  of  this  de- 
scription may  indeed  be  required  by  the  court  to  be  omitted  by  the 

ised  as  a  condition  to  his  continuing  his  address  or  filing  it  with 
the  record.     (Digest,  p.  500,  V,  II,  3.) 

292.  Admissions. — While  tin1  statement  proper  ran  not,  as  previously 
stated,  be  regarded  as  evidence,  and  the  accused  is  not  in  general 
to  bo  hold  bound  by  the  argumentative  declarations  it  contains,  yet 
if  he  clearly  and  unequivocally  admits  in  his  statement  certain  facts 
material  to  the  prosecution,  such  may  properly  be  viewed  by  the 
court  and  reviewing  authority  in  the  case.  Such  facts  must,  of  course, 
not  I  lent  with  the  plea.     But  admissions  of  this  sort  can 


COURTS-MARTIAL — CONCLUDING    INCIDENTS  OF    THE    TRIAL,       141 

scarcely  in  any  event  constitute  a  sufficient  basis  for  a  conviction  un- 
less supported  by  material  testimony  on  the  trial. 

[Note. — See  Chap.  IX.  par.  l"">4.  as  to  procedure  where,  aft<  r  a  plea  of  guilty, 
the  ace-used  makes  a  statement  Inconsistent  with  his  plea.] 

293.  Arguments. — After  the  accused  has  made  a  statement,  ii"  any, 
arguments  may  be  presented  to  the  court  by  the  judge  advocate,  the 
accused,  and  his  counsel.  The  judge  advocate  has  the  right  to  make 
the  opening  and  closing  argument,  but  the  court,  in  its  discretion, 
may  permit  the  defense  to  answer  any  new  matter  in  the  closing 
argument  of  the  judge  advocate. 

Section  II. 
FINDINGS. 

294.  Voting. — After  the  statements  and  arguments,  if  any  are  made, 
have  been  concluded  the  court  will  proceed  to  its  judgment  which 
consists  of  the  findings  and  sentence.  Members  of  a  general  or  spe- 
cial court-martial,  in  giving  their  votes,  shall  begin  with  the  junior 
in  rank.  (A.  W.  31.)  The  votes  of  the  members  must  bo  based  upon 
and  governed  by  the  testimony  in  the  case  considered  in  connection 
with  the  plea.  The  charges  and  specifications  are  voted  upon  in  the 
same  order  that  is  followed  in  arraigning  the  accused,  the  first  speci- 
fication to  the  first  charge  being  voted  upon,  then  the  second,  third, 
and  thereafter  in  order,  followed  by  a  vote  upon  the  charge  itself; 
and  so  on  with  the  other  charges.  A  tie  vote  on  a  finding  is  a  finding 
of  not  guilty. 

[Note. — For  refusal  t<>  vote  a  member   Ls  chargeable  under  A.  W.  00,  see 
VII,  par.  00.] 

295.  Majority  necessary  to  convict — Exception. — All  convictions, 
whether  by  general  or  special  court-martial,  may  he  determined  by 
a  majority  of  the  members  present,  except  that  no  person  shall  by 
general  court-martial  be  convicted  of  an  offense  for  which  the  death 
penalty  is  made  mandatory  by  law,  unless  by  the  concurrence  of  two- 
thirds  of  the  members  of  said  court-martial.  Where  the  death  pen- 
alty is  not  mandatory  but  is  discretionary  a  conviction  may  be  deter- 
mined by  a  majority  vote, but  two-thirds  of  the  members  must  concur 
in  the  death  penalty  before  it  can  be  imposed.  (A.W.43.)  (0.  M. 
C.M.,No.&.) 

296.  Reasonable  doubt.— Whore  issues  arise  during  ; 

trial,  as  for  instance  as  to  the  competency  of  members  or  witn 
and  evidence  is  taken,  the  question  at  issue  is  determined  by  pre- 
ponderence  of  evidence;  but  in  order  to  convict  of  the  charge-  and 
specifications  or  any  part  of  them  the  court  must  be  satisfied  of  the 
guilt  of  t:  a  reas  liable  doubt. 

[Note.— For  description  of  reasonable  d<  ap.  XT.  par.  288  I 

297.  General  principles  controlling  findings.— The  on  the 
charge  should  be  supported  by  the  finding  on  the  specification  (or 
specifications),  and  the  two  finding-  should  be  co               with  each 


112  MANUAL  FOR  COURTS-MARTIAL. 

other.  A  finding  of  guilty  on  the  charge  would  be  quite  inconsistent 
with  a  finding  of  not  guilty  on  the  specification.  So  a  finding  of 
guilty  on  a  well-pleaded  specification  apposite  to  the  charge,  followed 
by  a  finding  oi  not  guilty  either  of  the  article  charged  or  of  some  other 
proper  article,  would  he  an  incongruous  verdict,  Xo  matter  how 
many  specifications  there  may  be,  it  requires  a  iinding  of  guilty  on 
but  one  specification  (apposite  to  the  charge)  to  support  a  similar 
Iinding  upon  the  charge.  (Digest,  p.  536,  XII,  A.  2)  Evidence  can 
not  be  taken  a  iter  :i  Iinding  has  been  reached. 

298.  Guilty  of  a  lesser  included  offense. — If  the  evidence  proves  the 
commission  of  an  offense  which  is  included  in  that  with  which  the 
accused  is  charged  the  court  may  except  words  of  the  specification, 
and  if  necessary  substitute  others  instead,  pronounce  the  inno. 
and  guilt  of  the  excepted  and  substituted  words,  respectively,  and 
then  find  the  accused  either  guilty  of  the  charge  or  not  guilty  of  the 
charge,  but  guilty  of  a  violation  of  another  proper  article  of  war  as 
the  finding  on  the  specification  may  require.  Of  this  form  of  verdict 
the  most  familiar  is  the  finding  of  guilty  of  absence  without  leave 
under  a  charge  of  desertion.  In  such  a  case  the  court  should  find  as 
follows  where  the  charges  are  in  the  usual  form : 

Of  the  specification,  guilty  except  the  words  "desert"  and  "in 
desertion  "  substituting  therefor  respectively  the  words  "  absent  him- 
self without  leave  from  "  and  "  without  leave,"  of  the  excepted  words 
not  guilty,  of  the  substituted  words  guilty. 

Of  the  charge,  not  guilty  but  guilty  of  violation  of  the  sixty-first 

article  of  war. 

[Note. — For  a  discussion  <>!'  the  incidental  power  of  appointing  and  confirm- 
iiii,'  authorities  t<>  approve  and  confirm  a  tinding  of  guilty  of  a  lesser  included 
offense  see  Chap.  XVI,  pars.  877  and  379.] 

295.  Guilty  with  exceptions  and  substitutions. — It  is  a  peculiarity  of  the 
finding  at  military  law  that  a  court-martial,  where  of  opinion  that 
any  portion  of  the  allegations  in  a  specification  is  not  proved,  is 
authorized  to  find  the  accused  guilty  of  a  part  of  a  specification  only, 
excepting  the  remainder;  or,  in  finding  him  guilty  of  the  whole  (or 
any  part),  to  substitute  correct  words  or  allegations  in  the  place  of 
such  as  are  shown  by  the  evidence  to  be  incorrect.  And  provided  the 
exceptions  or  substitutions  leave  the  specification  still  appropriate  to 
the  charge  and  legally  sufficient  thereunder,  the  court  may  then  prop- 
erly find  the  a<  cused  guilty  of  the  charge  in  the  usual  manner.  Fa- 
miliar instances  of  the  exercise  of  the  authority  to  except  and  sub- 
stitute in  a  finding  of  guilty  occur  in  cases  where,  in  the  specihVa 
t  ion,  the  name  or  rank  of  the  accused  or  some  other  person  is  errone- 
ously designated,  or  there  is  an  erroneous  averment  of  time  or  place, 
or  a  mistaken  date,  or  an  incorrect  statement  as  to  amount,  quantity, 


COURTS-MARTIAL CONCLUDING   INCIDENTS  OF  THE  TRIAL.    143 

quality,  or  other  particular,  of  funds  or  other  property.  But  the 
authority  to  iind  guilty  of  a  lesser  included  offense,  or  otherwise  to 
make  exceptions  and  substitutions  in  the  findings,  does  not  justify  the 
conviction  of  the  accused  of  an  offense  entirely  separate  and  distinct 
in  its  nature  from  that  charged,  thus  "selling"  and  "through  neg- 
lect losing"  property  are  separate  offenses  though  each  is  a  violation 
of  A.  W.  84. 

300.  Substitution  of  general  for  specific  article  in  the  charge. — Another 
legal  and  now  common  form  of  finding  is  where  an  accused  is  charged 
with  an  offense,  made  punishable  by  an  article  of  war  other  than  the 
ninety-sixth  (as  for  instance  the  ninety-fifth  article),  and  the  court 
is  of  the  opinion  that,  wThile  the  material  allegations  in  the  specifi- 
cation are  proved,  they  do  not  fully  sustain  the  charge  as  laid,  but 
do  clearly  constitute  a  violation  of  the  ninety-sixth  article  of  war. 
In  this  case  the  accused  may  properly  be  found  guilty  of  the  speci- 
fication and  not  guilty  of  the  charge,  but  guilty  of  "  violation  of  the 
ninety-sixth  article  of  war."  It  should  be  remembered,  however,  that 
the  court  can  not  in  its  findings  legally  substitute  the  ninety-sixth 
article  of  war  for  any  other,  unless  the  proof  fails  to  substantiate 
the  specification  under  the  original  charge. 

301.  Joint  charges. — Where  joint  charges  are  tried,  if  one  or  more  of 
the  accused  persons  is  acquitted  and  one  or  more  is  convicted,  the 
findings  should  by  proper  exceptions  eliminate  the  words  showing 
that  the  acquitted  person  or  persons  was  a  joint  participant  in  the 
offense,  and  should  expressly  acquit  those  persons  whom  it  finds  not 
guilty. 

302.  Reasons  for  findings. — A  court-martial  may  spread  upon  the 
record  of  trial  a  brief  statement  of  reasons  upon  which  its  findings 
are  based.  In  many  cases  such  a  statement  will  aid  the  reviewing 
authority  in  determining  the  action  to  be  taken  by  him. 

303.  Findings  where  no  criminality  is  involved. — A  finding  of  "  guilty 
without  criminality  "  is  not  consistent  and  should  not  be  made.  If 
the  accused  is  found  to  have  committed  the  act  and  done  the  things 
alleged  in  the  specification,  but  without  the  guilty  intent  or  knowl- 
edge essential  to  constitute  the  offense,  the  court  should,  as  to  the 
specification,  find  the  accused  "not  guilty." 

304.  Fiidings  under  ckarge  of  drunkenness. — A  person  "  under  the  in- 
fluence of  intoxicating  liquor  "  or  "  intoxicated  "  is  "  drunk."  There- 
fore, under  the  eighty-fifth  article  of  war.  in  charging  that  the 
accused  was  found  "  drunk"  the  word  "  drunk  "  will  be  used.  So  in 
charging  other  offenses  involving  drunkenness  no  other  word  or 
phrase  will  be  used  as  a  substitute  for  "  drunk.''  Under  such  charges 
the  court  should  not  in  its  findings  substitute  such  phrases  a.s  "  undo. 
the  influence  of  intoxicating  liquor  "  and  "  intoxicated  "  for  "  drunk. 


144  MANTJAIi    FOR    COUKTs-MAKTIAL. 

305.  Recording  of  finding  or  sentence  by  reporter.— A  court-martial, 
member  of  court,  or  judge  advocate  can  not,  of  course,  lawfully  com- 
municate  to  a  reporter  or  clerk,  by  allowing  him  to  record  the  same 
or  <  therwise,  the  finding  or  sentence  of  the  court.  Bui  the  fad  that 
the  finding  or  sentence  or  both  may  have  been  made  known  to  a  re- 
porter or  clerk  can  not  affect  the  legality  of  its  proceedings  or 
sentence.     (Digest,  p.  558,  XIV,  E,  7.  g.) 

Section  III. 

PREVIOUS  CONVICTIONS. 

306.  Procedure  as  to  previous  convictions. — Courts-martial  will,  in  the 

■■.  after  a.  finding  of  guilty,  be  opened  for  the -purpose 
of  ascertaining  whether  evidence  of  previous  convictions  ha.-  been 
referred  to  the  court  by  the  appointing  authority,  and,  if  so.  of  re- 
ceiving it.  The  introduction  and  u  lence  of  previous  convic- 
tions will  he  limited  to  that  pertaining  to  convictions  by  courts- 
mart!:.!  of  an  offense  or  offenses  committed  by  the  accused  during  the 
curr<                 tnent  and  within  one  year  next  preceding  the  commis- 

of  any  of  the  offenses  of  which  he  stands  convicted  before  the 

.  These  convictions  may  be  proved  only  by  the  records  of 
previous  trials  and  convictions,  or  by  duly  authenticated  copies  of 
such  records,  or  by  duly  authenticated  copies  of  orders  promulgating 
such  trials  and  convictions,  or  by  a  duly  authenticated  copy  of  the 
record  of  pro  ;  'ctions  as  shown  by  the  service  record  of  the 

su<  h  records  and  orders  promulgating  such  trials 
and   convictions   are   duly   authenticated   when   impressed   with   the 

,,  of  the  bureau,  office,  or  headquarters  having  custody  of  the 

original,  or  when  certified  as  a  true  copy  by  an  officer  having  custody 

ds.     The  record  of  previous  convictions,  as  shown  by 

»rd,  is  duly  authenticated  when  certified  as  a  true  copy 

by  \\.^  officer  having  custody  of  such  service  record.     In  a  trial  by 

court-martial,  when  the  proof  is  the  copy  of  the  record  or 

of  the  order  promulgating  the  sentence  furnished  to  the  regimental 

her  commander,  it  will  be  returned  to  him,  and  a  certified  copy 
will  be  attached  to  the  record  of  trial.  When  the  proof  is  a  copy  of 
the  record  of  previous  convictions,  as  .shown  by  the  service  record, 
will  be  attached  to  the  record  of  trial.  The  evidence  of 
previous  convictions  referred  to  a  special  or  summary  court  will, 
after  trial,  be  returned  to  the  appointing  authority  and  will,  after 

mi  by  the  latter  on  the  case,  be  returned  to  the  command  to  which 
it  pertains.    (/'.  M.  C  M.,  Noa,  I  and 40 

307.  Character  of  previous  convictions.— l>y  "previous  conviction"  is 
meanl   a  previous  conviction  by  a  court-martial  where  the  sen 
has  been  approved  by  competent  authority.    A  previous  conviction 
l.».  b  ci\  il  or  naval  court,  an  acquittal,  or  an  approved  conviction  by  a 

:   martial  that  hash.  ide  as  illegal  is  not  a  wi  previous  con- 

Lon"  as  the  phrase  is  used  here.     Previous  convictions  are  not 


COURTS-MARTIAL — CONCLUDING    INCIDENTS   OF    THE    TRIAL.       145 

limited  to  those  for  offenses  similar  to  the  one  for  which  the  accused 
is  on  trial.  The  object  is  to  sen-  if  the  accused  is  an  old  offender  and 
therefore  less  entitled  to  leniency  than  if  on  trial  Cor  his  first  off 
This  information  might  not  be  fully  obtained  if  evidence  of  pre- 
vious convictions  of  similar  offenses  only  were  laid  before  the  court. 
The  consideration  of  previous  convictions  has  no  bearing  upon  the 
question  of  guilt  of  the  particular  charge  on  trial,  but  only  upon  the 
amount  and  kind  of  punishment  to  be  awarded.  They  are  not  con- 
sidered until  after  the  findings  have  been  reached. 

Section  IV. 

SENTENCES. 

308.  Voting.— After  the  findings  have  been  determined  upon  and 
resulted  in  a  conviction  noon  the  charge,  or  some  one  at  least  of  the 
charges  when  there  are  several,  or  in  a  conviction  of  a  lesser  offense 
included  in  the  one  charged:,  and.  in  the  case  of  a  soldier,  the  evidence 
of  previous  convictions,  if  any.  have  been  introduced,  the  coma  pro- 
ceeds to  adjudge  the  sentence.  In  voting,  the  thirty-first  article  of 
war  requires  that  the  junior  in  rank  .-hall  vote  first,  and  the  vote 
therefore  taken  in  the  inverse  order  of  rank.  Those  members  desir- 
ing  to  propose  a  sentence  usually  write  it  on  a  slip  of  paper  and  I. 

it  to  the  president.    The  president  reads  the  proposed  >entences  to  the 

court  and  the  members  vote  on  them  in  order,  beginning  with  the 

lightest,  until  a  majority  present,  unless  the  sentence  proposes  the 

death  penalty,  agree  upon  a  sentence.    When  a  sentence  of  death  is 

osed  two-thirds  of  the  members  must  agree  noon  the  sentence. 

before  it  can  be  adopted  regardless  of  whether  the  death  penalty  is 

mandatory  or  merely  discretionary  in  the  case  on. trial.     Even  in  a 

where  the  puni  fixed,  as,  for  instance  hty- 

rticle,  where  the  punishment  for  lurking  or  acting 

ninety-fifth  article,  where  the  punishment 

J,  the  members  rote  impose  this  punishment.    All 

(1...  meml  court,  those  who  voted  for  an  acquital  equally 

witli  those  who  voted  for  conviction,  should  vote  iov  some  sentence. 

(A.  W.  13.)      {V.  M.  G.  M.,No.2.) 

309.  Mandatory  and  discretionary  punishments. — Punishment,  under 
the  Articles  of  War,  is  either  mandatory,  that  is,  a  certain  punish- 

I  re  cribed  by  the  terms  of  the  article,  or  is  discretionary, 
i  b  is,  i  :  Left  to  the  discretion  of  the  court-martial.  If  the 
punisl  prescribed  in  the  article  violated,  any  other  punish- 

ment than  that  pi  .scribed   is  illegal.     For  instance  the   punishment 
imposed  by  a  court  for  a  violation  of  the  ninety-fifth  article  of  war 
mmt  be  dismissal,  it  can  no!  be  less  and  it  can  no1  be  more,  thou 
conviction  under  other  articles  at  the  same  trial  might  authorize  the 

,  -48 — n 


146  MANUAL  FOR  OOOBTS-MABXIAL. 

inclusion  of  other  forms  of  punishment  in  the  sentence.  Before  pro- 
nouncing sentence,  the  court  should,  therefore,  examine  the  article 
violated  to  see  what  punishment  may  be  legally  awarded.  As  to 
discretionary  punishments  the  President,  by  virtue  of  an  act  of 
Congress,  lias  by  executive  order  prescribed  maximum  limit 
punishment    for  certain  offenses  when  committed  by  soldiers.     The 

;  order  is  found  in  Chapter  XIII.  par.  349.  If  the  punish- 
ment is  discretionary  the  court,  before  proceeding  to  award  a  punish- 

:.  will  ascertain  whether  a  limit  is  fixed  in  the  order,  and  if 
no  limit  is  fixed  the  court  may  impose  any  punishment  that  is  sanc- 
tioned by  the  custom  of  the  service. 

[Note.-  See   mandatory   and   discretionary   punishment,   Chap.   IV,   Sec.   II, 

K).] 

310.  Sentences  for  officers. — For  officers  the  legal  sentences  by  court- 
martial,  depending  on  the  nature  of  the  offense,  include  death,  dis- 
missal with  confinement  at  hard  labor,  dismissal,  loss  of  rank,  sus- 
pension from  rank,  command,  or  duty,  with  or  without  loss  of  pay 
or  part  of  pay,  fine  or  forfeiture  of  pay,  confinement  to  limits  of  post 
or  reservation,  reprimand,  and  admonition. 

[Note.— Immediately  npon  the  promulgation  of  any  sentence  oil  court-martial 
in  the  caa  lissioned  officer  Involving  suspension  from  rank  and  com- 

mand, confinement,  reduction  in  lineal  rank,  or  any  other  material  change  in 
officer's  status,  the  commander  who  aas  authority  to  approve  such  sentence 
and  carry  it  into  execution  will  advise  The  Adjutanl  General  of  the  Army,  by 
telegraph,  of  the  sentence  imposed  as  approved  or  mitigated  and  the  <Uite  of 
promulgation  thereof.    (G.  o.  No,  <>,  War  Dept,  1910.)] 

311.  Sentences  for  soldiers. — For  soldiers,  the  legal  sentences,  de- 
pending on  the  nature,  of  the  offense  and  the  jurisdiction  of  the  court, 
include  death,  dishonorable  discharge,  confinement  at  hard  Labor,  hard 
labor  without  confinement,  forfeiture  of  pay.  detention  of  pay.  and 
reprimand;  for  noncommissioned  officers,  reduction  to  the  ranks;  for 
privates,  first  class,  reduction  to  second-class  privates  and  privates; 
for  cooks  of  the  Quartermaster  Corps  (where  sentence  is  imposed  by 
a  genera]  court-martial),  reduction  to  the  ranks:  and  for  those  hold- 
certificate  of  eligibility  to  promotion,  deprivation  of  all  rights 

and  privileges  arising  from  such  a  certificate.  That  portion  of  pay 
!i  is  required  to  be  allotted  to  dependenl  relatives  of  class  A. 
under  the  provisions  of  Article  II  of  the  Avar  risk  insurance  act  of 
October  6,  1917,  is  not  subject  to  he  forfeited  by  sentence  of  courts- 
martial.  Similarly,  the  Comptroller  of  the  Treasury  has  held  that 
(")  that  portion  of  pay  voluntarily  allotted  for  the  support  of  de- 
pendent    relati  lass    B    under   said    war    insurance    act;    (h) 

(hat  portion  of  pay  allotted  for  the  payment  of  insurance  premiums 
under  said  act;  and  (c)  that  portion  allotted  for  the  purchase  of 
liberty  loan  bonds  are  not  disturbed  or  affected  by  a  sentence  of  court- 
martial  imposing  a  forfeiture  of  pay.  (24  Coin]).  Dec.,  621.)  A  sen- 
tence imposing  forfeiture  of  a  pari  of  pay  means  the  forfeiture  of  the 
specified  part  of  that  portion  of  tin-  pay  which  is  not  so  allotted. 

[Note.— 1.  Confinement  without  hard  labor  sin. aid  never  be  Imposed.    2.  For 

forms  of  sentences,  gee  Appendix  D.J     (('.  .1/.  ('.  .1/.,  N08.  j  and  //.) 


COURTS-MARTIAL 0ONOL.UBING    lNi  CEDENTS  OF  THE  TRIAL.        147 

312.  Dismissal. — Under  the  article  of  war  which  pr< 

trace  oJ  dismissal  upon  conviction,  no  punishment  in  addition  to 
dismissal  is  authorized.  Therefore  no  punishment  in  addition  i<>  dis- 
missal can  legally  be  imposed  upon  com  iction  of  an  offense  under  the 
ninety-fifth  article  of  war  alone. 

For  statement  by  whom  a  sentence  of  dismissal  or  dishonorable  dis- 
charge  Imposed  by   National  Guard  courts-martial,  not  in  the  service  of  the 

■  i  Suites,  must  ii"  approved,  see  sec.  i<>7,  act  of  June  :>.  1916;  .".'.i  Stat. 
Appendix  2,  post.] 

313.  Loss  of  rank. — Loss  of  tank  is  accomplished  by  ;i  sentence  direct- 
ing that  an  accused  be  placed  at  the  foot  of  the  list  of  officers  of  his 
£t -a de  and  arm.  or  that  he  remain  at  the  foot  of  such  list  until  he  shall 
have  test  a  certain  number  of  fifes,  or  for  a  certain  Length  of  time,  or 
that  he  lose  a  certain  number  of  files,  or  that  his  name  shall  appeal- 
in  the  lineal  list  of  officers  of  his  arm  next  below  that  of  a  certain 

r  named. 

314.  Suspension  from  rank. — Suspension  from  rank  includes  suspen- 
from  command.  It  deprives  an  officer  of  the  right  to  promotion 
\acaney  in  a  higher  grade  occurring  pending  the  term  of 

sion  and  which  he  would  have  been  entitled  to  receive  by  virtue 
uiority  had  he  n<>t  been  suspended.  It  does  not,  however,  de- 
prive tin  officer  of  the  right  to  rise  in  files  in  his  grade.  Suspension 
from  rank  also  make-  an  officer  ineligible  to  sit  upon  a  court-martial, 
court  of  inquiry,  or  military  board,  and  deprives  him  of  privileges 
that  depend  on  rank,  such  as  the  selection  of  quarti 

315.  Suspension  from  command. — This  punishment  merely  deprives 
deer  of  authority  to  exercise  his  proper  military  command  and, 

[uently,  of  his  right' to  give  orders  to  or  exact  obedience  from 
his  juniors  or  perform  any  other  duties  that  go  with  the  exercise  of 
command.  It  does  not  affect  his  right  of  promotion  or  any  military 
rights  or  privileges  other  than  those  attaching  to  command.  It  is 
therefore  not  an  appropriate  punishment  for  a  stall'  officer. 

316.  Suspension  from  duty. — Suspension  from  duty  i>  practically 
equivalent  to  a  sentence  of  suspension  from  command.  It  is  appro- 
priate in  the  case  of  an  officer  holding  a  position  involving  the  per- 
form tive  duty,  as  distinguished  from  actual  mili- 
tary command,  as  in  the  ease  of  officers  of  the  - 

317.  Fine. — A  fine  is  distinguished  from  a  forfeiture  in  that  it  is  a 
punishment  which  imposes  a  pecuniary  liability  in  general,  not  n< 
sarily  affecting  pay.    It  is  especially  recognized  as  a  form  of  punish- 
ment in  the  ninety-fourth  article  of  war.     It  is  usually  ttied 
in  the  Bentence  by  a  provision,  in  order  to  enforce  collection,  thai 

>D  lined  -hall  be  imprisoned  until  th(  |  aid  or  until  a  ; 

portion  of  time  considered  as  an  equivalent  punishment  has  expired. 
Fines  as  well  as  forfeitures  accrue  to  the  United  State-  and  can  not 
be  imposed  or  collected  for  the  benefit  of  any  individual. 


148  MANUAL    FOR    COURTS-M  AKTIA  L. 

318.  Reprimand. — This  sentence  is  usually  awarded  to  officers  only 
and  for  minor  offenses  where  b  mild  penalty  is  to  be  inflicted.    In 

il  it  is  not  appropriate  for  enlisted  men,  but  is  authorized  in  the 
i  <>f  noncommissioned  officers.    The  proper  authority  to  admin- 
the  reprimand  is  the  iv-  iewing  authority,  and  he  may  vary  it  in 
severity  or  mildness,  according  to  his  views  of  the  case. 

319.  Confinement  to  limits  of  post  or  reservation. — This  form  of  pun- 
Lent    is   rather  a  deprivation   of   a  privilege   than   confinement. 

Where  it  is  imposed  on  an  officer  on  duty  with  troops  it  is  customary 
to  so  qualify  it  as  to  enable  him  to  take  part  in  maneuvers,  practice 
marches,  and  perform  other  duties  connected  with  his  command. 

320.  Dishonorable  discharge. — A  dishonorable  discharge  can  he  im- 
posed only  pursuant  to  a  sentence  of  a  general  court-martiaL  The 
discharge  should  he  dated  as  of  the  day  on  which  the  order  promul- 
gating such  approval  is  received  at  the  post  where  the  soldier  is  held. 

ttence  adjudging  a  dishonorable  discharge  to  take  effect  at  such 
period  during  a  term  of  confinement,  as  may  he  designated  by  the 
reviewing  authority  i.-  illegal. 

321.  Suspension  of  dishonorable  discharge. — Members  of  a  court-mar- 
tial may  properly  recommend,  in  a  communication  made  separately 
hut  forwarded  to  the  reviewing  authority  with  the  record,  that  sen- 
tence of  dishonorable  discharge  be  suspended.    (See  par.  332.) 

322.  Confinement  at  hard  labor. — In  the  case  of  officers  this  punish- 
ment is  imposed  only  in  connection  with  a  sentence  of  dismissal. 
Where  "hard  labor"  is  intended,  it  should  be  stated  in  the  sentence, 
but  the  omission  of  these  words  will  not  prevent  such  punishment  be- 

required   where   it   is  authorized  in  the  maximum-punishment 

order.     (Sec.  A.  AY.  37.) 

OTE>-Chap.  XVI,  Sec.  I.  park  396-398,  stale  the  rules  as  to  whether  a  post, 
the  United  States  Disciplinary  Barracks  or  one  of  its  branches,  or  a  peniten- 
tiary shall  ed  as  the  place  of  confinement.] 

323.  Hard  labor  without  confinement. — This  punishment  is  regulated 
by  the  provisions  of  the  Executive  order  fixing  the  maximum  limits 
of  punishment.  Chapter  XT1T,  Section  \I.  par.  310. 

324.  Forfeiture  of  pay  and  allowances. — Pay  and  allowances  can  not 
be  forfeited  in  a  sentence  by  implication.  If  the  court  intends  to 
forfeit  pay  or  pay  and.  allowances,  the  penalty  of  forfeiture  should 
be  adjudged  in  terms  in  the  sentence.  No  other  punishment 
imposable  by  court-martial — not  even  a  sentence  of  death,  dismissal, 
suspension,  dishonorable  discharge,  or  imprisonment— involves  of 
itself  a   forfeiture  or  deprivation  of  any  part  of  the  pay  or  allow- 

-  due  the  party  at  the  time  of  the  approval  or  taking  effect  of 
the  sentence.  It  is  not  customary  to  provide  in  sentences  for  a  for- 
feiture  of  allowances  unless  the  sentence  also  imposes  a  dishonorable 
discharge  and  forfeiture  of  pay.  A  sentence  of  forfeiture  of  a  cer- 
tain number  of  days"  pay,  or  two-thirds  of  a  soldier's  pa}7  for  a 


COTJBTS-MABTIAL — CONCLTJDIN< ;   [NOIDENTS  OP  THE  TBIAL.       149 

:ii  period  does  not  Forfeit  extra-duty  pay.    (Digest,  p.  544,  XII, 
B,3,e  (1)  :  Bui  18,  War  Dept,  L915,  pp.  8,9.) 

325.  Courts  can  not  stop  pay  in  favor  of  Government  or  an  individual. — 
A  court-martial  can  direct  a  forfeiture  only  in  favor  of  the  United 
States,  and  can  not  assign  the  pay  of  a  soldier  to  any  other  person; 
nor  can  a  soldier  be  required  to  receipt  for  money  paid  without  hi  i 
nt.  A  sentence  can  not  appropriate,  or  stop  pay  for  the  reim- 
bursement or  benefit  of  the  Government  or  a  Government  agency, 
such  as  a  company  fund,  post  fund,  hospital  fund,  nor  of  an  m- 
civil  or  military,  however  justly  the  same  may  be  due  him, 
either  for  money  borrowed,  stolen,  or  embezzled  by  the  accused 
or  to  satisfy  any  other  pecuniary  liability  of  the  accused,  whether 
in  the  nature  oi  debt  or  damages.  The  "stoppage"  of  pay  to  reim- 
burse the  Government  or  a  Government  agency  on  account  of  losses 
for  which  officers  and  enlisted  men  are  responsible  is  purely  an  ad- 
ministrative matter  with  which  courts-martial  have  nothing  to  do. 
Sentences  providing  that  a  soldier  shall  be  dishonorably  discharj 
forfeiting  all  pay  and  allowances  due  or  to  becom.  scept  suck 

amounts  as  may  ho  due  the  post  exchange,  Fort  ,  and  the 

company  fund.  Company , Infantry,"  in  no  way  hasten 

or  facilitate  the  settlement  of  the  debts  duo  the  exchange  or  company 
fund.     Such  matters  in.  a  sentence,  are  mere  surplusage. 

32G.  Forfeiture  of  deposits. — Deposits  of  soldiers  and  interest  thereon 

arc    :  ton,  but  the  forfeiture  can  not  be  imposed 

lurt-martial.     They  arc  exempt   from  liability,  to 

•    a   sentence  of  a  court-martial  imposing  forfeiture  of  pa 

allowances.     A  sentence  that  a  soldier  shall  deposit  a  certain  part  of 

hi-  pay  is  illegal.     (Digest,  p. 5 IT.  XII,  B,  4.  c.) 

327.  Reduction  of  noncommissioned  officer. — This  punishment  i 

the  provisions  of  the  Executive  order  fixing  maximum  limits 
of  punishment,  Chapter  X11L  Section  VI.  par.  340. 

328.  Detention  of  pay. — This  punishment  was  reviv<  I  by  tin 

tive  order  of  Septa  I  I.  fixing  the  maximum  limits  of  pun- 

ishment, and  is  regulated  by  the  provisions  of  the  Executive  order 
\    ; !    -  (ction  VI,] 

329.  When  reward  for  apprehending  deserter  not  to  be  stopped. — If  a 
soldier  he  brought  to  trial  under  a  charge  of  desertion  and  acquitted, 

evicted  i  I  hout  leave  only,  any  amount  paid  as  a 

ird  for  his  I      ill  not   he  stopped  against  his  pay,  and  a 

oviding  for  such  a  stoppage  is  not  authorized. 

330.  Sentences  of  general  prisoners. — Courts-martial  in  imposi] 

i         .  upon  general  pri  om  rs  are  restricted  I  •  '<■■■  iposing  additional 
confinement  at  hard  labor  to  !  i  upon  the  completion  or  termi- 

nation of  their  existing  •  and  will  not   interfere  with  the 

manner  of  executing  such  sentences  by   prescribing  loss  of  aood- 


150  MAX  I   Al.  i;l>-.MAi;TIAL. 

Conduct  time,  solitary  confinement,  or  confinement  on  bread-and- 
water  diet,  leaving  all  such  punishments  to  lie  imposed  by  tin-  com-' 
manding  officer  as  the  ordinary  means  of  enforcing  discipline. 

331.  Reasons  for  sentence. — A  court-martial   may  spread  upon  tin" 
:.|  of  trial  a  brief  statement  of  reasons  upon  which  its  sent* 

is  based.      In   many   rases  such   a   statement    will    aid   the   reviei 
authority  in  determining  the  action  to  be  taken  by  him. 

332.  Recommendations  to  clemency. — When  a  court-martial,  or  any 
member  thereof,  desires  to  submit  a  recommendation  to  clemency, 
including  a  recommendation  for  the  suspension  of  the  whole  or  of 
any  part  of  the  sentence  imposed  by  the  court,  such  recommendation 
will  be  signed  by  each  member  of  the  court  desiring  to  participate 
therein.  The  communication  carrying  the  recommendation* will  in- 
clude a  statement  in  succinct,  form  of  the  reasons-  upon'  which  the 
recommendation  is  based  and  will  be  appended  to  the  record 

(See  par.  S57  {d).) 

332a.  Report  to  commanding  officer  of  result  of  trial — When  made.— 
When  an  enlisted  man  has  been  tried  by  a  general  court-martial  and 
acquitted,  or  has  been  convicted  and  the  sentence  does  not  include 
dishonorable  discharge  or  confinement,  the  judge  advocate  will  at 
once  notify  the  commanding  officer  in  writing,  direct,  of  the  fact  that 
the  prisoner  has  not  been  sentenced  to  dishonorable  discharge  or 
confinement,  whereupon  the  commanding  officer  will  at  once  release 
the  'prisoner  from  confinement  or  arrest,  provided  he  is  not  awaiting 
trial  or  result  of  trial  under  other  charges.  Since  an  acquittal  or  a 
conviction  is  not  effective  until  acted  upon  by  the  proper  reviewing 
authority  (see  par.  371)  it  follows  that  such  release  of  the  accused 
from  confinement  or  arrest,  pending  action  by  the  reviewing  author- 
ity, docs  not  prevent  the  court,  upon  reconsideration  of  its  sentence, 
from  imposing  a  sentence  involving  imprisonment.  Con 
the  eidi.ted  man  so  released  shall  not  be  ordered  to  duty  outside  of 
the  jurisdiction  of  the  reviewing  authority  until  the  case  shall  have 
been  finally  disposed  of  by  proceedings  in  revision  or  otherwise. 
r.  Ops,  J.  A.  G.,  May.  1918,  p.  29,-)     (/'.  J/.  C.  J/.,  Nob.  1  and  .',.) 


CHAPTER  XTTT. 
COURTS-MARTIAL— PUNISHMENTS. 


BectionI:  Disciplinary  power  of  command]  pag* 

Authority  for 

:  I  hi  punishment 

N 153 

Not  limited  :■  

II:  Confinement  in  a  penitenl 

When  authorized 

ited  in  a  penitentiary 

Authority  fox  prnitentiary  sentence  to  be  cited 

ing  punishments: 

ion 

34  L.  £  of  prisoners 

3-12.  Adaptation  of  punishments I 

ishmenta 159 

IV:   Prohibited  puni.-lnuents: 



ilations 160 

B<  •  ath — Cowardice — Fraud: 

i  toath  penalty 160 

oaaery  penalty 1C1 

.  VI:  Maximum  limits: 

: 

161 

Section  I. 

DISCIPLINARY  POWER  OF   COMMANDING   OFFICER. 
333.  Authority  for. — While  courts-martial  are  the  judicial  machinery 
by  law  for  the  trial  of  military  offenses,  the  I 
nizes  i  power  of  command,  when  wisely  and  justly  • 

is  a  powerful  agency  for  the  maintenance  of 
cipline.    Courts-martial  and  the  disciplinary  powers  of  commanding 

fields  in  which,  they   mi  1 1 1  v 

dency,   however,   le 
.-'Mi.    To  invoke  court-martial  jurisdiction  rather  than  to 
of  command  Ul  matters  to  which  it   is  • 
appl  .  is  to  ch<"  ong  insl i 

unnecessarily  military   functions,  injure  rather  than  maintain 
cipli  ::i  authority  the  use  of  which 

and  increases  t!  for  command. 

given  to  the  exercise  of  such  d 
rticle  of  war : 
ch  regulal  i<  ns  as  thi 
which  he  may  from  time  to  time  Iter,  or  ad 

command  of  any  detachment,  company,  or  hi: 

151 


152  MANUAL  FOR  COURTS-MARTIAL. 

may,  for  minor  offenses  not  denied  by  the  accused,  impose  dis- 
ciplinary punishments  upon  persons  of  his  command  without  the 
intervention  of  a  court-martial,  unless  the  accused  demands  trial  by 

court-martial. 

The  disciplinary  punishments  authorized  by  this  article  may  in- 
elude  admonition,  reprimand,  withholding  of  privileges,  extra 
fatigue,  and  restriction  to  certain  specified  limits,  but  shall  not  in- 
clude forfeiture  of  pay  or  confinement  under  guard.  A  person 
punished  under  authority  of  this  article  who  deems  his  punishment 
unjust  or  disproportionate  to  the  offense  may,  through  the  proper 
channel,  appeal  to  the  next  superior  authority,  but  may  in  the  mean- 
time be  required  to  undergo  the  punishment  adjudged.  The  com- 
manding officer  who  imposes  the  punishment,  his  successor  in  com- 
mand, and  superior  authority  shall  have  power  to  mitigate  or  remit 
any  unexecuted  portion  of  the  punishment,  The  imposition  and  en- 
forcement of  disciplinary  punishment  under  authority  of  this  article 
for  any  act  or  omission  shall  not  be  a  bar  to  trial  by  court-martial 
for  a  crime  or  offense  growing  out  of  the  same  act  or  omission ;  but 
the  fact  that  a  disciplinary  punishment  has  been  enforced  may  be 
shown  by  t\\e  accused  upon  trial,  and  when  so  shown  shall  be  con- 
sidered in  determining  the  measure  of  punishment  to  be  adjudged  in 
the  event  of  a  finding  of  guilty." 

While  commanding  officers  should  always  use  their  utmost  influ- 
ence to  prevent  breaches  of  discipline  and  compose  conditions  likely 
to  give  rise  to  such  breaches,  they  should  also  impose  and  enforce 
the  disciplinary  punishment  authorized  by  the  above  article.  This 
authority,  involving  the  power,  judgment,  and  discretion  of  the 
commander,  can  not  be  delegated  to  or  in  any  manner  participated 
in  by  others,  but  must  be  exercised  by  the  commander  upon  his  own 
judgment  and  in  strict  compliance  with  the  article  and  the  regula- 
tions prescribed  by  the  President  pursuant  thereto.  Accordingly, 
the  commanding  officer  of  a  detachment,  company,  or  higher  com- 
mand will  usually  dispose  of,  and  may  award  disciplinary  punish- 
ment for,  any  offense  committed  by  any  enlisted  man  of  his  com- 
mand which  would  ordinarily  be  disposed  of  by  summary  court- 
martial,  when  the  accused  does  not  deny  that  he  committed  the 
offense  and  does  not  demand  trial  by  court-martial  before  the  com- 
nanding  officer  has  made  and  announced  his  decision  in  the  case. 

334.  Record  of  punishment. — For  each   punishment  awarded,  the 
lander  will  cause  to  be  made  in  the  service  record  of  the  accused 
a  brief  statement  showing — 

I'iie  offense,  including  d 


COURTS-MARTIAL PUNISHMENTS.  153 

(b)  Punishment,  if  any.  with  date  on  which  awarded. 

(c)  Decision  of  higher  authority,  if  appeal  is  made. 
(CM.  C  M.,No.4-) 

335.  Appeals. — If  an  appeal  is  made  to  the  next  superior  authority  it 
shall  be  in  writing  through  the  immediate  commander  awarding  the 
punishment  or  his  successor,  wdio  will  immediately  forward  it  to  the 
superior  with  a  copy  of  the  record.  An  appeal  shall  consist  of  a 
brief  statement  signed  by  the  accused,  giving  his  reasons  for  regard- 
ing the  punishment  as  unjust  or  disproportionate,  and  shall  be  ac- 
companied by  a  like  brief  statement  by  the  commander  in  support  of 
the  punishment  awarded.  The  superior  will,  in  passing  upon  the  ap- 
peal,  hear  no  witnesses  and  will  consider  no  statements  other  than 
those  forwarded  with  the  appeal,  but  will  be  limited  strictly  to  the 
consideration  of  the  punishment  awarded.  He  will  be  reluctant  to 
disturb  the  award  of  punishment,  but  when  justice  clearly  requires 
such  action  he  may  modify,  set  aside,  or  even  increase  the  punish- 
ment awarded,  but  in  no  case  will  he  award  a  different  kind  of  pun- 
ishment. After  having  considered  the  appeal  he  will  return  the 
record  to  the  commanding  officer  from  whom  received,  with  a  state- 
ment of  his  disposition  of  the  case. 

336.  Not  limited  to  soldiers. — The  power  is  not  limited  in  its  applica- 
tion, either  in  law  or  principle,  to  enlisted  men,  but  may  with  pro- 
priety be  applied  as  well  to  commissioned  officers,  especially  those 
of  junior  grades.  Obviously  in  the  case  of  officers  the  occasion  for 
such  action  will  be  less  frequent,  the  variety  of  punishment  available 
more  restricted,  and  the  selection  of  the  most  effectual  punishment 
more  perplexing,  but  when  the  best  interests  of  discipline  require 
such  action  it  shall  be  taken  with  firmness  and  in  no  wise  restrained 
by  an  unwarranted  regard  for  the  commissioned  grade  of  the 
offender. 

If  the  accused  demands  a  court-martial,  steps  will  promptly  be 
taken  to  bring  him  to  trial  and  notation  of  the  demand  will  appear 
upon  the  charges. 

Section  II. 

CONFINEMENT  IN  A  PENITENTIARY. 

337.  When  authorized. — The  forty-second  article  of  war  follows  the 
rules  of  the  Federal  Penal  Code  and  practice  respecting  the  impo- 
sition of  penitentiary  confinement  in  so  far  as  they  can  be  applied 
to  court-martial  procedure.  Under  the  Federal  Penal  Code  any 
offense  is  a  felony  which  is  punishable  under  the  code  or  other  statute 
of  the  United  States  by  confinement  in  excess  of  one  year.     Buib 


15-i  MANUAL  FOE  COURTS-MARTIAL. 

no  person  may  be  confined  h,  /  uuless  the  punishment 

■  '!>/  adjudged  Ear  an  offense  of  which  be  bas  been  convicted 
ne  year.     Under  civil  procedure  it  is  not  permissible  to 
join  in  a  single  Indictment  and  trial  offenses  of  a  different  nature 
t  practice,  also,  confinement  is  never  ordered  to  be 
ited  in  a  penitentiary  unless  among  the  offenses  upon  which  the 
sentence  ;.-  awarded  is  found  a  felony;  that  is  to  .say.  an  offense  of 
it  civil  nal  rately  punishable  by  confinement  to  exceed  one 

The  pi..  ilt  is  that  no  person  is  confined  in  a  peni- 

tentiary wdes8  both  of  the  following  conditions  subsist: 

(1)  The  confinement  that  could  lawfully  be  awarded  as  punish- 
ment of  some  one  of  the  offenses  of  which  he  stands  convicted  (if 
that  conviction  stood  alone)  would  exceed  one  year. 

The  confinement  actually  adjudged  exceeds  one  year. 

The  ninety-third  and  ninety-sixth  articles  of  Avar  now  confer  upon 
courts-martial  jurisdiction  to  try  all  crimes  and  offenses,  not  capital, 
of  which  persons  subject  to  military  law  may  be  guilty.  Under  the 
military  practice,  dissimilar  offenses  may  be  joined  in  the  same  set- 
of  charges;  convictions  may  be  had  on  one  set  of  charges  joining 
crimes  of  a  civil  nature  with  purely  military  offenses,  and  a  single 
sentence  may  be  adjudged  on  all  the  convictions.  Also,  there  are 
certain  purely  military  offenses  which  are  by  statute  made  punish- 
able by  confinement  in  a  penitentiary,  -regardless  of  the  term  of  con- 
finement imposed.  Notwithstanding  these  departures  from  the  prac- 
tice of  Federal  courts,  the  jurisdiction  granted  to  courts-martial  to 
punish  offenses  of  a  civil  nature  ought  not  to  be  exercised  with 
greater  harshness  than  is  practiced  under  the  criminal  jurisdiction 
of  United  States  courts,  and  the  analogies  with  the  penal  rules  of 
those  courts  ought  carefully  to  be  maintained.  The  forty-second 
article  of  war  and  the  following  rules  of  practice  which  result  from 
that  article  preserve  these  analogies  as  far  as  they  can  be  preserved 
under  court-martial  procedure. 

338.  Classes  of  sentences  to  be  executed  in  a  penitentiary. — Sentences 
of  the  following  classes  may  be  executed  in  a  penitentiary : 

Class  1 :  Commutation  of  death  sentence.  Any  confinement, 
whether  more  or  less  than  a  year,  awarded  by  way  of  commutation  of 
a  death  sentence,  may  be  executed  in  a  penitentiary;  and  this  is  true 
whether  the  offense  for  which  the  sentence  of  death  was  awarded  waa 
of  a  military  or  of  a  civil  nature,  and  whether  the  sentence  was 
awarded  on  conviction  of  a  capita]  charge  alone  or  on  conviction  on 
a  capital  charge  coupled  \\  itl>  conviction  on  other  charges  not  cai 

Class  2 :  Military  offenses.      A   sentence  of  confinement  awarded 
upon  conviction  of  one  or  more  of  the  military  offenses  enumer 
in   this  class   may   he  executed   in   a   penitentiary,   regardless  of  the 


COURTS-MARTIAL PUNISHMENTS.  155 

length  of  the  sentence  imposed,  but,  in  practice,  a  penitentiary  sL 
not  be  designated  unless  the  confinement  adjudged  exceeds  one  year. 
However,  if  a  conviction  is  had  on  several  offenses,  either  nailitaa 
civil  in  nature,  one  of  which  is  included  in  this  class,  and  the 
tence  adjudged  on  all  the  convictions  together  exceeds  one  year,  the 
confinement  may  lie  executed   in  a  penitentiary.     The  military  of- 
fenses comprised  in  this  class  are: 

(a)  Desertion  in  time  of  war. 

(b)  Repeated  desertion  in  time  of  peace. 

(c)  Mutiny. 

Class  3:  Offenses  of  a   civil   nature.     A  sentence   *  one 

i  confinement,  awarded,  either  on  conviction  of  any  one  or  more 
of  the  several  offenses  of  a  civil  nature  described  below,  or  on  con- 
viction of  any  one  or  more  of  the  several  offenses  of  a  civil  nature 
described  below,  coupled  with  a  conviction  or  convictions  of  one  or 
more  military  offenses,  may  be  executed  in  a  penitentiary,  if  any  one 
of  the  several  offenses  of  a  civil  nature  standing  alone  would  be 
punishable  by  confinement  exceeding  one  year  by  the  limits  of  pun- 
ishment order,  or,  if  not  covered  by  said  order,  then  by  the  law 
denouncing  the  offense,  or  by  any  other  Federal  statute. 

The  civil  offenses  contemplated  in  class  3  are : 

(a)  An  act  or  omission  specified  and  denounced  as  an  offense  in 
the  Penal  Code  of  the  United  States. 

(b)  An  act  or  omission  specified  and  denounced  as  an  offense  in 
any  other  statute  of  the  United  States.  This  heading  has  reference 
particularly  to  penal  provisions  not  properly  separable  from  the  ad- 
ministrative laws  of  the  several  branches  and  departments  of  gov- 
ernment, and  not  included  in  the  Penal  Code.  Such  offen-es  will 
rarely  be  encountered  in  court-martial  practice. 

(c)  An  act  or  omission  recognized  as  an  offense  at  the  common 
law  as  the  same  exists  in  the  District  of  Columbia,  wherever  com- 
mitted or  omitted.  The  offenses  under  this  head  that  may  be  en- 
countered in  court-martial  practice  include  the  offense  of  sodomy. 
(CM.CM.NQ.Jk.) 

339.  Authority  for  penitentiary  sentence  to  be  cited. — In  each  case  tried 
by  general  court-martial  in  which  a  penitentiary  is  designated  as  the 
place  of  confinement  of  the  person  tried,  the  record  of  trial,  when  for- 
warded to  the  Judge  Advocate  General  of  the  Army,  will  be  accom- 
panied by  a  signed  statement  indicating  the  lav  or  laws  authorizing 
the  confinement  in  a  penitentiary  of  the  person  sentenced. 

In  each  case  tried  by  general  court-martial  in  which  the  confine- 
ment of  the  offender  in  a  penitentiary  is  authorized  by  law,  bi 
which  a  place  other  than  a  penitentiary  is  designated  as  the  place  of 
confinement,  the  record  of  trial,  when  forwarded  to  the  Judge  Advo- 
cate General  of  the  Army,  will  be  accompanied  by  a  signed  statement 


15G  M.\>.r\L   rOB   CQUBTS-MABTTAL. 

indicating  the  law  authorizing  the  confinement  in  a  penitentiary  of 
the  person  sentenced  and  the  reasons,  briefly  expressed,  Eor  desig- 
nating a  place  other  than  a  penitentiary,  instead  of  a  penitentiary,  as 
the  place  of  confinement  in  the  particular  case. 

If  the  law  relied  upon  as  authorizing  confinement  in  a  peniten- 
tiary be  a  Federal  statute  an  accurate  citation  will  be  regarded  as 
sufficient  to  indicate  the  law.  but  if  any  other  l<iw  is  relied  upon  as 
authorizing  such  confinement,  the  law  will  lie  quoted  in  hill  in  the 
required  statement. 

Section  III. 
WAR  DEPARTMENT  POLICY  REGARDING  PUNISHMENTS. 

340.  Desertion. — The  p<>li<  y  of  the  War  Department  respecting  pun- 
ishment for  desertion  was  announced  in  General  Orders,  No.  77.  War 
rtment,  June  10,  1911.     Corrective  confinement  and  forfeiture 
were  i  in  cases  of  inexperienced  soldiers  who  by  surrender 

manifested  a  disposition  to  atone  for  their  offenses.  The  number  so 
punished  and  saved  to  the  service  has  so  increased  each  year  that  this 
policy  has  been  enforced  with  fairly  satisfactory  results.  In  addi- 
tion a  limited  number  of  this  class  of  offenders  lias  been  restored  to 
duty  without  trial  under  the  provisions  of  A.  R.  131. 

Since  that  order  was  issued  important  changes  have  been  intro- 
duced in  our  military  penology.     Purely  military  oil'  rving 
sentences  in  (he  United  States  Disciplinary  Barracks  at  Fort  Leaven- 
worth and  its  branches  may  be  restored  to  an  honorable  status  and 
their  enlistment.    By  the  act  of  August  'l-l.  L912  (37  Stat., 
.  reenlistment  of  this  class  of  offenders  is  authorized  with  the 
approval,  in  each  case,  of  the  Secretary  of  War;    [Jnder  'he  provisions 
■  of  April  27,  1914   (38  S                I    dishonorable  discharge 
with  a  view  to  restoration  to  duty  by  remi 
thereof  should  the  conduct  of  the  offender  warrant.    There  are  now 
additi               ms  of  saving  men  to  the  colors — men  wh  5  are 
thou/                 ts  due  to  youth  or  inexperience  or  committed  under 
.:id  for  tl                     have  in  them  less  of  the  ele- 
•  of  culpability.    Supplementing  these  method-  is  tin-  establish- 
ment of  disciplinary  organizations  at  the  United  State-  Disciplinary 
icks  where  the  offenders  of  this  class  who  desire  reenlistment  or 
restoration  may  receive  an  intensive  practical  training  to  fit  them  for 
efficient  service  from  the  moment  of  rejoining,     li  i    confidently  be- 
lieved that   in.  •                  !  in  this  way  will  make  better  soldiers  than 
those  restored  by  tin-  old  methods,  \  i/.  without  trial  under  A.  !•!.  L31 
or  with  trial  and  a  short  period  of  corrective  punishment. 
These  old  methods  may  he  continued  in  the  Limited  number  of 
where  there  are  good  grounds  for  belief  that  a  soldier  restored 
by  such  methods  will  creditably  complete  his  enlistment  period,  but 


COURTS-MARTIAL PUNISHMENTS.  157 

all  doubtful  cases  should  be  sent  before  a  court  competent  to  adjudge 
dishonorable  discharge  and  the  longer  periods  of  confinement,  to 
the  end  that  advantage  may  be  taken  of  the  more  effective  methods 
of  reformation  and  training  by  hard  labor  and  intensive  practical 
military  instruction  now  provided  at  the  United  States  Disciplinary 
Barracks.  These  periods  of  confinement  are  graduated  so  as  to 
prevent  inequalities  of  punishment  for  like  degrees  of  culpability 
and  are  sufficient,  it  is  believed,  to  meet  the  ends  of  punishment  where 
restoration  to  duty  is  not  in  contemplation.  Where  restoration  is  in 
contemplation,  as  in  case  of  purely  military  offenders,  including 
deserters,  the  period  of  confinement  imposed  is,  under  the  new  policy, 
in  practical  effect  the  maximum  of  an  indeterminate  sentence.  In 
other  words,  the  period  for  which  the  offender  is  held  depends  en- 
tirely  upon  himself.  With  good  conduct  and  proper  progress  toward 
reform  evidencing  efficiencj  in  training  and  fitness  to  resume  service 
relations  the  sentence  of  confinement  terminates  and  the  honorable 
stains  of  duty  with  the  colors  is  resumed. 

While  it  is  the  effect  of  this  policy  to  mitigate  the  condition  of  the 
peace  deserter  who  desires  to  redeem  his  record  and  earn  an  honorable 
restoration  to  duty  with  the  colors,  it  carries  no  substantial  mitiga- 
tion as  to  other  classes  of  deserters.  Experience  has  not  thus  far 
demonstrated  the  wisdom  of  any  change  in  the  policy  of  severe 
punishment  for  this  latter  class.  An  engagement  for  military  service 
has  little  in  common  with  an  ordinary  private  contract  for  personal 
service,  and  the  fact  that  an  individual  may  abandon  such  a  con- 
tract with  only  minor  consequences  to  himself  furnishes  no  suggestion 
that  a  corresponding  rule  may  be  properly  adopted  in  the  Army. 
Nor  does  the  fact  that  the  early  requirement  of  the  common  law  that 
a  call  to  civil  office  or  civil  employment  under  the  Government  could 
not  be  disregarded  by  the  citizen,  nor  the  obligations  of  such  office  or 
employment  be  laid  down  at  his  will,  no  longer  obtains,  furnish  any 
suggestion.  An  engagement  for  military  service  creates  a 
special  .status,  and  many  obligations  flow  from  that  status  which  are 
not  obligations  of  the  citizen  in  the  civil  service  of  the  Government 
or  under  a  private  contracts  for  personal  service.  Other  closely  re- 
■>\  considerations  inherent  in  the  nature  of  military  service  support 
this  view.  The  Army  is  an  emergent  arm  of  the  public  service  which 
the  Nation  holds  ready  for  a  time  of  great  peril.  Military  service  is 
an  obligation  which  every  citizen  owes'  the  Government.  It  is  settled 
law  that  such,  service  may  be  compelled,  if  necessary,  by  draft.  Nor 
is  the  obligation?  of  the  soldier  who  volunteers  for  a  fixed  period  dif- 
ferent from  that  of  the  drafted  soldier.  By  his  ad  of  volunteering 
he  consecrates  himself  to  the  military  service.  His  engagement,  sup- 
ported by  an  oath  of  allegiance,  is  thai  the  Nation  may  depend  upon 
him  for  such  service  during  the  fixed  period,  whatever  may  be  the 


10S  MANUAL    FOB   (  OUBT&-M  \i:n  u.. 

emergency.  When  this  engagement  ia  breached  a  high  obligation  to 
Nation  is  disregarded,  a  solemn  oath  of  allegiance  is  violated,  and 
the  Government  is  defrauded  in  the  amount  of  its  outlay  incident  to 
inducting  the  soldier  into  the  military  service,  training,  clothing,  and 
caring  for  him  while  he  remains  in  that  sen  ice,  and  transport  ing  him 
to  the  station  from  which  he  Desertion  is  thus  seen  to  be, 

not  simply  a  breach  of  contract  for  personal  service,  but  a  grave  crime 
against  the  Government;  in  time  of  war  perhaps  the  gravest  that  a 
soldier  can  commit,  and  at  such  times  punishable  with  death.  These 
facts  furnish  ample  justification  for  a  continuance  of  the  poliey  of 
severe  punishment  for  the  offense  of  desertion  in  time  of  peace,  sub- 
ject only  to  the  qualification  that  it  should  not  be  severe  to  the  d\ 
of  barring  an  honorable  restorat  ion  to  duly  of  the  thoughtless,  young, 
ox  inexperienced  offenders  who  desert  and  who,  on  return,  manifest 
a  de-ire  to  atone  for  their  desertions  and  qualify  themselves  in 
character  and  training  for  such  restoration  by  service  in  the  dis- 
ciplinary battalions  and  companies  now  organized  at  the  United 
States   Disciplinary    Barr 

341.  Segregation  of  prisoners. — It  is  the  policy  of  the  War  Depart- 
ment to  separate,  ^<>  far  as  practicable,  general  prisoners  convicted  of 
offenses  punishable  by  penitentiary  confinement  from  general  pris- 

-  convicted  of  purely  military  offenses  or  of  misdemeanors  in 
connection  with  purely  military  offense&  In  furtherance  of  this 
policy,  reviewing  authorities  will  designate  a  p  the 

place  id'  confinement  of  general  prisoners  sentenced  to  he  confined 
for  more  according  to  the  rules  laid   down   in    Sec- 

tion   II.      v/</,   excepl    in    individual    cases   in   which    the   proved 
-how  that  the  holding  of  the  prisoners  so  convicted  in 
barra  ms  with  disdemeanants  and  military  offenders  will 

not  be  to  the  detriment  of  the  latter.     Instructions  will   tx    issued 
from  time  to  time  by  the  War  Department  to  commanders  having 

:al  court-martial   jurisdiction  regarding  the  place  of  confine- 
ment for  genera]  prisoners  sentenced  to  confinement  in  penitentii 
{<■.  M.  C.  M.,No.l.) 

342.  Adaptation  of  punishments. — In  cases  where  the  punishment   is 
tionary  the  In  is  of  the  service  and  of  society  demand 

thoughtful  application  of  the  following  principle.-:  That  bee 
of  the  effect  of  confinement  upon  the  soldier's  self-respect  confine- 
ment is  not  to  be  ordered  when  the  interests  of  the  service  permit  it 
to  he  avoided:  that  a  man  against  whom  there  is  no  evidence  of 
previous  convictions  for  the  same  or  similar  offenses  should  be  pun- 
arely  than  one  who  has  offended  repeatedly;  that  the 
i  nee  or  absence  of  extenuating  or  aggravating  circumstances 
should  he  taken  into  consideration  in  determining  tin1  measure  of 
punishment    in  any  case;  that  the  maximum  limits  of  punishment 


COUETS-  MARTIAL — PUNISHMENTS.  159 

authorized  are  to  be  applied  only  in  eases  in  which,  from  the  nature 
ami  circumstances  of  the  offense  and  the  genera]  conduct  of  the 
offender,  severe  punishment  appears  to  be  necessary  to  meet  the 
ends  of  discipline;  and  that  in  adjudging  punishment  the  court 
should  take  into  consideration  the  individual  characteristics  of  the 
accused,  with  a  view  to  determining  the  nature  of  the  punishment 
best  suited  to  produce  the  desired  results  in  the  case  in  question,  as 
the  individual  factor  in  one  case  may  be  such  that  punishment  of 
one  kind  would  serve  the  ends  of  discipline,  while  in  another  case 
punishment  of  a  different  kind  would  be  required.  As  an  instance 
of  the  necessity  for  adapting  punishment  to  thje  particular  case  under 
consideration,  it  is  to  be  noted  that  prior  experience  with  detention 
of  pay  by  sentence  of  court-martial  indicates  that  this  form  of  punish- 
ment, while  not  generally  applicable,  was  nevertheless  found  to  be  an 
effective  means  of  restraint  and  discipline  for  a  considerable  number 
of  offenders. 

343.  Relative  severity  of  punishments. — The  usual  punishments  im- 
posed upon  soldiers  are  the  following,  beginning  with  the  least  severe : 

(1)  Detention  of  pay. 

(2)  Forfeiture  of  pay, 

(3)  Reduction, 

(4)  Hard  labor  without  confinement, 

(5)  Confinement  at  hard  labor,  and 

(6)  Dishonorable  discharge. 

In  the  absence  of  evidence  of  two  or  more  previous  convictions,  a 
minor  offense,  the  nature  of  which  appears  to  demand  punishment  by 
hard  labor,  should  ordinarily  be  punished  by  hard  labor  without 
finement,  rather  than  by  confinement  at  hard  labor.  For  oil 
properly  punishable  by  detention  of  pay,  forfeiture  of  pay,  reduc- 
tion, or  hard  labor  without  confinement,  those  forms  of  punishment 
should,  as  a  rule,  be  resorted  to  before?  confinement  at  hard  labor  is 
imposed. 

Section  IV. 
PROHIBITED  PUNISHMENTS. 

344.  By  statute. — Punishment  by  flogging, or  by  branding,  marking, 
or  tattooing  on  the  body  is  prohibited.     (A.  W.  -11.) 

345.  By  custom  and  regulations. — Many  punishments  formerly  sanc- 
tioned have  now,  under  a  more  enlightened  spirit  of  penology,  become 
so  obsolete  as  to  be  effectually  prohibited  by  custom   without  the 

-sity  of  regulation-:  among  these  are  carrying  a  loaded  knap- 
sack, wearing  irons  (both  handcuffs  ami  leg  irons— these  an-  now 
used  only  in  exceptional  cases  for  the  purpose  of  preventing  escape 
and   not  as  a   punishment),  shaving  the   head,   placarding,  pillory, 


1G0  MAM' A'      FOB    COURTS-MARTIAL. 

sto.-ks.  and  tying  up  by  the  thumbs.  To  impose  md&itary  duty  In  <in>/ 
form  as  a  pwrmlmu  ni  must  tend  to  degrade  it.t<>  the  prejudice  of  the 
l.  •  terest  of  the  service;  such  punishments,  therefore,  as  impos- 
ing tours  of  guard  duty  <>r  requiring  ;i  soldier  to  sound  all  calls'  at 
the  post  for  a  certain  period,  arc  forbidden.  Solitary  confinement 
on  a  bread  and  water  dici  and  the  placing  of  a  prisoner  in  irons  are 
regarded  as  means  of  enforcing  prison  discipline.  They  will  not  be 
imposed  as  a  punishment  by  a  court-martial. 

Si  (i  ion   A'. 

DEATH— COWARDICE— FRAUD. 

346.  Death  penalty. — No  person  shall,  by  general  court-martial,  be 
convicted  of  an  offense  for  which  the  death  penalty  i^  made  manda- 
tory by  law.  nor  sentenced  to  sutler  death,  except  by  the  concurrence 
of  two-thirds  of  the  members  of  said  court-martial.  Where  the  death 
penalty  is  uot  mandatory  but  is  discretionary  a  conviction  may  be 

mined  by  a  majority  vote,  but  two-third-  of  the  members  must 
concur   in   imposing   the   death   sentence.     Courts-martial   have  no 
power"  to  impose   the  death  penalty,  except   for  offenses  expressly 
made  punishable  by  death  by  the  Articles  of  War.     (A.  W.  43.)     A 
court-martial,  in  imposing  the  sentence  of  death,  should  not  designate 
the  i  ime  and  place  for  its  execut  ion,  such  designation  not  being  within 
its  province,  but   pertaining  to  that  of  the  reviewing  or  confirming 
authority.    If  it  doe-  so  designate,  this  part  of  the  sentence  may  be 
garded  and  a  different  time  and  place  be  fixed  by  the  reviewing 
or  confirming  authority.     (Digest,  p.  10."),  XCVI,  B.)     If  the  desig- 
!  day  passes  without   execution,  the  same  authority  or  his  su- 
or  may  name  another  day.    Death  by  hanging  is  considered  more 
minious  than  death  by  shooting  and  is  the  usual  method  of  execu- 
tion designated  in  the  case  of  spies,  of  persons  guilty  of  murder  in 
connection  with  mutiny,  or  sometimes  for  desertion  in  the  face  of  the 
:  but  in  case. of  a  purely  military  offense,  as  sleeping  on  post, 
:  snee  when  imposed   is  usually  "to  be  -hot   to  death   with 
musketry."    Hanging  is  the  proper  method  of  executing  a  death  sen- 
when   imposed   for  violation  of  A.  W.  92.     For  the  sake  of 
pie  and  to  deter  others  from  committing  like  offenses  the  death 
sentence  may,  when  deemed  advisable,  be  executed  in  the  presence 
of  the  troops  of  the  command.    (A.  W.  43.)     (C.  M.  C.  M.,No.  2.) 

347.  Cowardice — Fraud — Accessory  penalty. — When  an  officer  is  dis- 
1  from  the  service  for  cowardice  or  fraud,  the  crime,  punish- 

t,  name,  and  place  of  abode  of  the  delinquent  -hall  be  published 
in  thi  >ers  in  ami  about  the  camp  and  in  the  State  from  which 

the  offender  came  or  where,  he  usually  resides;  and  after  such  publi- 
n  it  shall  be  scandalous  for  an  oflicer  to    associate    with    him. 


COL'BTS-MARTIAL PUNISHMENTS.  161 

The  terms  "cowardice  "  and  "  fraud  "  as  employed  in  this  article 
refer  mainly  to  the  offenses  made  punishable  by  A.  W.  75  and  94. 
With  these,  however,  may  be  regarded  as  included  all  offenses  in 
which  fraud  or  cowardice  is  necessarily  involved^  though  the  same 
be  not  expressed  in  terms  in  the  charge  or  specification.     (Digest,  p. 

166,  C,  A.)  The  publication  throughout  the  United  States  in  press 
dispatches  of  "the  crime,  punishment,  name,  and  place  of  abode*'  of 
the  accused  is  a  sufficient  compliance  with  the  article.     (See  Digest,  p. 

167,  C,B.) 

Section  VI. 

MAXIMUM  LIMITS. 

348.  By  whom  prescribed — When  applicable. — Whenever  the  punish- 
ment for  a  crime  or  offense  made  punishable  by  these  articles  is  left 
to  the  discretion  of  the  court-martial,  the  punishment  shall  not,  in 
turn  of  peace,  exceed  such  limit  or  limits  as  the  President  may  from 
time  to  time  prescribe.  (A.  W.  45.)  The  President  has  no  authority 
to  prescribe  the  maximum  limits  of  punishment  to  be  imposed  for 
offenses  committed  in  time  of  war.      (C.  M.  C.  M.,  No.  4-) 

349.  Executive  order. — The  following  Executive  order  becomes  op- 
erative on  March  1,  1917,  as  to  offenses  committed  on  and  after  that 
date  and  as  to  criminal  acts,  committed  prior  to  that  date,  whose 
maximum  punishment  was  not  prescribed  in  the  Executive  order  of 
September  5.  1914.  The  Executive  order  of  September  5,  1914,  pub- 
lished in  General  Orders,  No.  70,  War  Department,  1914,  prescribing 
limits  of  punishment,  remains  operative  as  to  offenses  committed 
before  March  1,  1917.  except  as  to  criminal  acts  whose  maximum 
punishment  has  been  decreased  by  this  order,  which  will  not  be  fol- 
lowed by  severer  punishment  than  is  hereinafter  prescribed. 

[Note. — 1.  Only  articles  V  and  VIII  are  operative  in  time  of  war.  (Ops.  J.  A. 
(I.  250.4,  Feb.  20,  1918.)  -.  An  offense  committed  prior  to  the  declaration  of 
war,  but  tried  thereafter,  comes  within  the  Executive  order  prescribing  the 
maximum  limits  of  punishment;  the  order  does  not  apply  to  offenses  com- 
mitted in  time  of  war.  whether  sneh  offenses  be  tried  during  time  of  war  or 
not  until  time  of  peace  after  the  termination  of  the  war.  (Ops.  J.  A.  G.  30-S23, 
Aug.  -J'.».  1917.  il 

Executive  Oedeb. 

Under  authority  of  an  act  of  Congress  approved  September  27,  1890  (26  Stat., 
491),  as  reenacted  in  article  45  of  section  3  of  an  act  of  Congress  approved 
Augusl  29,  1916  (39  Stat..  657),  the  following  maximum  Limits,  in  time  of  peace, 
of  punishmenl  of  soldiers  are  prescribed: 

53915°— 18 12 


162 


MANUAL    F011    col  1M  S-MARTIAL. 

i.k  r. 


OiTenses. 

Punishments. 

■3 

Dis- 
honor- 
able dis- 

forfeiture 

..1  all 
pav  and 

ancesdoe 

and  to 

become 

due. 

Confinement  at  hard 
labor. 

feiture 
of  two- 

t  birds 

month. 

For- 
feiture 
of  pay. 

s 

Years.     Months. 

Days. 

Days. 

54 

Enlistment ,  fraudulent : 

Procured  bj  means  of  willful  misrepre- 
sentation or  concealment  of 

regard  to  a  prior  enlistment  or  dis- 

avictlon 

i   ii  or  military  offense,  or  in 

re  nil  to  Imprisonment  under  sen- 
tence of  a  court. 

Yes 

Ves   .. 

1 

6 
6 

68 

Attempting  todi 

After  not  more  than  six   months  in 

. 
After  more  than  sjx  months  in  service.. 
In  tho  execution  of  a  conspiracy  or  in 
of  an  unlawful  asscm- 
a  bleb  the  troops  may  bo  oppos- 
ing. 
■ I  Ion: 
Terminated  by  apprehension— 

Not  more  than  <>  months  in  service 

at  time  of  de-ertion. 
Mere  than  8  months  in  service  at 
time  of  desertion. 
Terminated  by  surra 

After  absence  of  not  more  than  30 

days. 
A  fterabsen-c  of  more  than  30  days.. 
In  the  execution  ol  a  congpiracy  or  in 
the  presence  of  an  unlawful  "assem- 
blage, wluch  the  troops  may  be  oppos- 
ing. 

Yes 

Yes 

Ves 

Yes 

Yes 

Yes 

Yes 

Yes 

1 
3 

U 

2} 

1 

li 
5 

lig 

6 

6 

tag  knowingly,  or  persuading  another 

tent. 

■   ithout  leave: 
From  command,  quarters,  station,  or 
camp — 

1 

61 

3 

2 

ton  of  a  day  of  absence. 

Fes 

6 

From  guard— 

For  not  more  t  ban  1  hour 

15 

3 

.   ..                3 

Patting  to  repair  at  the  fixed  time  to  the 
pointed  place  ol  assembly  for, 
.-  tor: 

I 

.. 

3 

2 

2 



"II  call 

1 

COURTS-MARTIAL PUNISHMENTS. 

Article  I— Continued. 


163 


Offenses. 


Leaving  without  permission  the  properly 
appointed  place  of  assembly  for,  or  place 


Pis- 
honor- 
able dis- 
charge. 
forfeiture 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 


Athletic  exercise. 

Drill 

Fatigue 

■    erase. .. 

Gallery  practice. 

Guard  mounting 

exercise.. 

Inspection 

Instruction 





Prison  guard 

Review 

School 

Stable  duty 

Target  practice 

Reveille  or  retreat  roll  call 

Using  contemptuous  or  disrespectful  words 
oe  President,  Vice  President,  etc. 
.  it li  disrespect  toward  his  supe- 
rior i 
Attempting  to  strike  or  attempting  other- 
•uilt  a  noncommissioned  officer 
in  the  execution  of  his  office. 
Behaving  in  an  insubordinate  or  disrespect- 
ful manner  toward  a  noncommissioned 
in  the  execution  of  his  o  Bee. 
'!•!>,  willful,  of  the  lawful  order  of  a 
noncommissioned  officer  in  the  execution 
of  his  0 
Striking  or  otherwise  assaulting  a  noneom- 
.  .1  officer  in  the  execution  of  his 
office. 
Threatening  to  strike  or  otherwise  assault, 
or  using  other  threatening  language  to- 
ward a  noncommissioned  officer  in  the 
execution  of  his  office. 
Using  Insulting  language  toward  a  noncom- 
missioned officer  in  the  execution  of  his 
office. 
Drawing  a  weapon  upon  a  noncommis- 
■  i 'idling  a  quarrel,  fray,  or 
disorder. 

i  i  obey  a  noncommissioned  officer 
quellii  order. 

mg    a    noncommissioBi 

irrel,  fray,  or  disorder. 


I 

g  from  confinement 
Releasing,    without    proper   authority,   a 

ii  committed  to  Bis  el)  i 
i  prisoner  committed  to  his  charge 

Through  desien 

Through  neglect 

Suffering,  through  neglect,  military  prop- 
be   damaged,    lost,   spoiled,   or 
wrongfully  disposed  of: 

|20  or  less 

i  and  more  than 
$20. 
Of  a  value  of  more  than  $.">0 


Confinement  at  hard 
labor. 


Years.    Months.     Days 


Yes. 


For- 
feiture 
of  two- 
thirds 


For- 
feiture 

ol  pay. 


Months.     Days. 


164 


IWAXIAL     FOB    <  <>l   KTS-MAKTIAL. 

Abticj  b  1     Conl inued. 


Offenses. 

I'uii:   !: 

1 

- 
- 

Dis- 
honor- 
able dia- 
charge, 
forfeiture 

ofall 
pay  and 

allow- 
ances due 

and  lei 

become 

due. 

Confinement  at  hard 

labor. 

For- 
feiture 
of  two- 
thirdfl 
paj  per 
month. 

For- 
feiture 
of  pay. 

- 

Years. 

Months. 

Months. 

Days. 

Eta 

Buffering,  willfully,  military  property  to  be 
damaged,  lost,  spoiled,  >>r  wrongfully  dis- 
l  ><  ■  ed  of: 

6 
6 

6 

Of  a  value  of  $50  or  less  and  m 

$20. 

Yes 

Yes 

2 

M 

injuring  or  losing,  through  neglect,  horse, 
arms,  ammuniaon,aocouterments,  equip- 
ment, clothing,  or  other  property  issued 
fur  use  in  ilie  military  service,  or  items 
ine  i"  two  or  men-  of  said  cli 

3 
6 

3 

6 

Of  a  I  alue  of  $50  or  less  and  more  than 
$20. 

Yes 

1 

Injuring  or  losing,  willfully,  horse,  arms, 
ammunition,  accoutt  nnents,  equipment, 
clothing,  or  other  property  issued  for  use 

;n  th                      ice,  or  items  belonging 
to  t  wo  or  more  of  said  classes: 

6 
6 

6 

Of  a  \alue  of  $50  or  less  and  more  than 
$20. 

Yes...   . 

Yes 

Yes . . 

2 

r\vi.-e  wrongfullj  disposing  of 

borse,  arms,  ammunition,  accouterments, 

equipment,  clothing,  or  other  property 

1  for  use  in  the  military  service,  or 

■    belonging  to  two  or  more  of  said 

( I .    es: 

6 

Of  a  value  of  $50  or  less  and  more  than  $20 

Yes.... 

Yes 

1 
5 

..:::::::: 

B5 

drunk: 
At  formation  for  or  at— 

.  ... 

i           

5 

6 

G 

■ 

20 

• 
hi  quarters. 



COURTS-MARTIAL PUNISHMENTS. 

Article  I — Continued. 


165 


Offenses. 

Punishments. 

i 

a 

Dis- 
honor- 
able dis- 
charge, 
forfeiture 

of  all 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
thirds 

|Kl\    per 

month. 

For- 
feiture 
of  pay. 

< 

Years. 

Months. 

Days. 

Months. 

Days. 

Yes 

6 

1 

3 

OJ 

Leaving  before  regularly  relieved  from  or 

deeping  on  post,  sentinel. 
Using  a  provoking  or  reproachful  speech  or 

gesi  are  to  another. 

Yes 

1 

3 

Yes 

Yes 

Yes 

Yes 

Yes 

20 

5 
10 

20 
10 

Assault: 

With  intent  io  commit  any  felony  ex- 
cept murder  or  rape. 

With  intent  to  commit  murder  or  rape. . 

Embezzlement  or  larceny: 

of  property  of  a  value  of  S20or  less 

Of  property  of  a  value  of  S50  or  less,  and 
more  than  $20. 

Of  property  of  a  value  of  more  than  $50 . 
Manslaughter: 

Involuntary,  in  the  commission  of  an  un- 
lawful act  not  amounting  to  a  felony. 
or  in  the  commission  of  a  lawful  act 
which  might  produce  death,  in  an  un- 
lawful manner,  or  without  due  cau- 
tion or  circumspection. 

Voluntary,  upon  a  sudden  quarrel  or 
heat  of  passion. 

6 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

Yes 

5 
3 

10 

5 

10 
5 

1 
5 

Forging  or  counterfeiting  a  signature,  mak- 
ing a  false  oath,  and  offenses  related  to 
either  of  these. 

Other i 

$50. 

6 
3 
3 

6 

3 
3 

Allowing  a  prisoner  to  receive  or  obtain 
intoxicating  liquor. 

Appearing    in    civilian    clothing    without 

Appearing  in  unclean  uniform,  or  not  in 
prescribed  uniform,  or  in  uniform  worn 
otherwise  than  in  manner  prescribed. 

10 

1 

3 

6 
6 

0 

1 

1 

3 
3 

3 

6    

attempting  to  escape  from  confinemenl 

Attempting  to  strike  or  attempting  other- 
wise to  assault  a  sentinel  in  the  execution 
of  his  duty. 

Behaving  in  an  insubordinate  or disrt 
fill  manner  toward  a  sentinel  in  the  execu- 
tion of  his  duty. 

Breach  of  restriction  (ot  her  t  ban  quarantine) 
to  command,  quarters,  station,  or  camp. 

G 

1 

3 
3 

.  mutilating,  obliter- 
ating,or  removing  willfully  and  unlawfully 
a  public  record,  or  taking  and  carrying 
away  a  public  record  with  intent  to  eon- 
destroy,  mutilate,  obliterate, remove, 
or  steal  the  same. 

Conspiring  to  escape  from  confinement 

Destroying,  willfully,  public  property: 
Of  a  value  of  $20  or  less .' 

Yes 

3 

6 
0 

Y 

$20. 
Of  a  value  of  more  than  $50 1  Yes 1           5 

1G6 


MAXrAL    FOR    COURTS-MARTIAL. 

Article  I  -Continued. 


Offenses. 

Punishments. 

3 

-■ 
"3 

- 

honor- 
able dis- 

forfeiturc 

ofall 
pay  and 

afiow- 
aucwdue 

and  to 

become 

due. 

Confinement  at  hard 

labor. 

feiture 

of  two- 
thirds 

For- 
feiture 

S 

< 

Years. 

Months. 

oe 

3 

Disobedience,  willful, of  the  lawful  order  of 
a  sentinel  In  the  e  cecution  of  his  doty. 

ily  in  command,  quarters,  station, 
or  camp. 
Disorderly  under  such  circumstances  as  to 
.11  upon  the  military  sen  Ice. 

1 

1 
4 

2 

■'. 

6 

• 

1 

■1 

2 
8 

6 

Drunk  and  disorderly  in  command,  quar- 

on.  oi  camp. 
Drunk  and  disorderly  under  such  circum- 
stances as  to  bring  di.-n.iii  upon  the 
military  service. 
Drunk  in  command,  quarters,  station,  or 

camp. 
Drunk  under  such  circumstances  as  to  bring 
m  upon  the  military  service. 

15 

3 
3 

3 
3 

Failing  to  obey  a  lawful  order: 

Yes 

1 

6 
6 
6 

3 

1 

6 

Failing  to  pay  a  just  debt  under  such  cir- 
niiii  (amis  as  to  bring  discredit  upon  the 
military  service. 

official  report  or  statement  knowingly 
made: 

Yes.. 

3 

1 

Yes 

Yes 

3 
5 

Gambling: 

noncommissioned  officer  with  a 

i    of    lower    military    rank    or 

grade. 
In  command,  quarters,  station,  or  camp 
in  piol 

3 

2 
3 

2 
3 

Introducing  a  habit-forming  narcotic  drug 
tote  command,  quarters,  station,  or  camp: 

Yes 

Yes 

2 
1 

Dntrodui  in^i  intoxicating  liquor  into  com- 
mand, quarters,  station,  or  camp: 

6 

3 

6 

3 

l 

Loan.                      ter  as  principal  or  agent, 

.nother 

Ing  or  Bitting  down  on  duty  by  senti- 

Obtainlng  money  or  other  property  under 

When  the  amount  obtained  is?20orless. 
When  the  amount  obtained  1 

and  more  than  $20. 
When  the  amount  obtained  is  more  than 
MO. 
Refusing  to  submit  to  medical  or  dental 

mi  ni. 
i:. in  Ing  to  ni. mil  i..  :                       :ion. . . 
i  other  unnatural  crlmea 

1 
6 

Yes 

Yes 

Ye 

1 
5 

6 

Yes 

1 

5 

3 

3 

Ing   a    -.'Illillrl 

in  i  he  execution  of  his  duly. 

Yes 

5 

or  e          !      -     mil 
or    using    other    threatening    language 

•  mine!  in  the  execution 
duty. 

4  | 

•1 

COURTS-MARTIAL PUNISHMENTS. 

Aiitiii.i:  I— Continued. 


167 


Offenses. 

Punishments. 

i 

Dis- 
honor- 
able dis- 
charge, 
forfeiture 

ofall 
pay  and 
allow- 
ances due 
and  to 
become 
due. 

Confinement  at  hard 
labor. 

For- 
feiture 
of  two- 
third* 
pay  per 
month. 

For- 
feiture 
ol  pay. 

Years. 

Months. 

Days. 

Months. 

Days. 

Unclean     accontcrraent,     arm,     clothing, 
equipment,  or  other  military  property, 
found  with. 

Dsme  iaaulUug  langnage  toward  a  sentinel 
in  tilt'  execution  of  his  duty. 

1 

3 

1 
3 

Yes 

5 

Violation  of  condition  of  parole  by  general 
oner. 

3 

Article  II. 


EQUIVALENTS. 


Section  1.  Subject  to  the  limitations  set  forth  elsewhere  in  this  order,  sub- 
stitutions for  punishments  specified  in  Article  I  thereof  are  authorized  at  the 
tioi)    <>f    ihe    court,    at    the    rates    indicated    in    the    following    table    of 
equivalents : 


Forfeiture. 

Confinement 
at  hard  labor. 

Detention. 

TTard  labor 
without  con- 
finement. 

1  day's  pay.. 

1J days'  pay... 

1J  days. 

Aktici.e  III. 


GENEBAX     LIMITATIONS. 


i  now  1.  A  court  shall  not,  by  a  single  sentence  which  does  net  include  dis- 
..   discharge,  adjudge  against  a  soldier: 

(«  i    Forfeiture  of  pay  at  a  rate  greater  than  two-thirds  of  his  pay  per  month. 

(6)    Forfeiture  of  pay  in  an  amount  greater  than  two-thirds  of  his  pay  for 
six  months. 

(i  i    (  V  litiiieinent  at  hard  labor  for  a  period  greater  than  six  months. 

J    A  court  shall  not.  by  a  single  sentence,  adjudge  against  a  soldier: 

(«)    Detention  of  pay  at  a  rate  greater  than  two-thirds  of  his  pay  per  month. 

(In    Detention  of  pay   in  an  amount    greater   than  t\vo-thir<ls  of  his  pay    for 
throe  months. 

(0)    Hafd  lahor  without  confinement  for  a  period  greater  than  three  months. 

Ai;n<  i.e   IV. 


Minium  MISSIONED    OFFICERS. 

Sixtton   i.  a   court  shall   not.   unless   they   in   the  same   sentence   adjudge 

reduction   to  the  CBnkB,   adjudge  against    a    noncommissioned  officer   confinement 

at  hard  labor,  nor  hard  labor  without  <  onlinciii'-nl. 


168  MANUAL    FOR    COURTS-MARTIAL. 

Sir.  _'.  a  court  may,  upon  his  conviction  <>f  an  offense  or  offenses  for  which 
they  may  adjudge  confinement  at  bard  labor  for  a  period  of  five  or  more  days. 
authorized  substitution  considered,  adjudge,  In  addition  to  the  punishments 
otherwise  authorized,  reduction  against  a  aoncommlssloned  officer  <>r  against 
:i  private,  Oral  class. 

ARTICLE    y. 
PREVIOUS    CONVICTIONS. 

Si ,   i.  a  general  or  special  court  shall,  upon  conviction  of  a  soldier,  he 

opened  and  shall  thereupon  ascertain  whether  there  is  evident f  a  previous 

conviction  or  convict  ions,  which  has  heen  referred  to  the  court  hy  the  con- 
vening' authority,  and.  if  there  he  such  evidence,  shall  receive  it. 

SEC.  2.  A  court  may.  under  the  authority  contained  in  section  1  of  this  arti- 
cle, receive  evidence  only  of  convictions  by  court-martial  of  an  offense  or  of- 
fenses committed  hy  the  accused  during  his  current  enlistment  and  within 
one  year  next  preceding  the  commission  hy  him  of  an  offense  of  which  he 
stands  convicted  before  the  court.  These  convictions  may  be  proved  only  by 
the  records  of  previous  trials  and  convictions  or  hy  duly  authenticated  copies 
of  such  records  or  hy  duly  authenticated  copies  of  orders  promulgating  such 
trials  and  convictions  or  hy  a  duly  authenticated  copy  of  the  record  of  previous 
convictions  as  shown  hy  the  service  record  of  the  accused. 

Abttcle  VI. 

DISHONORABLE   DISCHARGE. 

PTONl.  A  court  may,  upon  his  conviction  of  an  offense  or  offenses 
for  none  of  which  dishonorable  discharge  and  forfeiture  of  all  pay  and  allow- 
ances due  and  to  become  due  is,  in  Article  I  of  this  order  or  by  the  cus- 
tom of  the  service,  authorized,  upon  proof  of  five  or  more  previous  convic- 
tions, adjudge  against  a  soldier,  in  addition  to  the  confinement  at  hard  labor 
without  substitution  authorized  in  said  article  or  by  the  custom  of  the  service 
for  the  offense  or  offenses  of  which  he  is  convicted,  dishonorable  discharge 
and  forfeiture  Of  all  pay  and  allowances  due  and  to  become  due,  and,  in  any 
such  case  in  which  such  confinement  so  authorized  is  less  than  three  months, 
a  court  may  adjudge,  in  addition  to  such  discharge  and  forfeiture,  confinement 
at  hard  labor  for  three  months. 

Sec. 2.  A  court  may.  upon  his  conviction  upon  one  arraignment  of  two 
or  more  offenses  for  none  of  which  dishonorable  discharge,  confinement  at 
hard  labor  and  forfeiture  Of  all  pay  and  allowances  due  and  to  become  due 
is.    ;n   Article   I  of  this  order  or  hy   the  custom  of  the  service,   authorized,   hut 

the  aggregate  term  of  confinement  at  hard  labor  for  which,  as  authorized  in 

said  article  or  by  the  CUStom  of  the  service,  without  Substitution,  equals  or 
exceeds  six  months,  adjudge  against  a  soldier.  In  addition  to  the  confinement 

al  hard  labor,  without  substitution,  authorized  in  said  article  or  hy  the  custom 
Of  the  service  for  the  offense  or  offenses  of  which  lie  is  convicted,  dishonorable 
discharge  and  forfeiture  of  all  paj   and  allowances  duo  and  to  become  due. 

Article  VII. 

mm.   r   and   AI'IM.K   vi  [ON    OF    i  i:  [8   ORDER. 

Section  i.  This  order  prescribes  the  maximum  limit  of  punishment  for  each 
oi  the  offenses  therein  specified,  and  thus  indicates  an  appropriate  punishment 
for  an  offense  which  is  attended  hy  aggravating  circumstances,  or  sifter  convic- 
tion  of  which    there   is   received   by    the  court    evidence  of  several   previous  C0U- 


COURTS-MARTIAL PUNISHMENTS.  169 

victions.     In  other  cases  the  punishment  will  be  mailed  down  according  to  the 
circumstances  thereof. 

SBC.  2.  Offenses  not  herein  provided  for  remain  punishable  as  authorized  by 
statute  or  the  custom  of  the  service,  but,  in  casus  for  which  maximum  punish- 
ments  are  not  prescribed,  rourts  will  he  guided  by  limits  of  punishment  pre- 
scribed for  closely  related  offenses. 

Aktki.i:  VIII. 

A  D  M  IMS  1  1 J  A  T I V I :   B  ULES. 

Section  1.  Hard  labor  without  confinement,  when  imposed  as  a  punishment, 
Shall  be  performed  in  addition  to  other  duties  which  fall  to  the  soldier,  and  no 
soldier  shall  be  excused  or  relieved  from  any  military  duty  for  the  purpose  of 
performing  hard  labor  without  confinement  which  has  been  imposed  as  a  pun- 
ishment, but  a  sentence  imposing  such  punishment  shall  be  considered  as  satis- 
fied when  the  soldier  shall  have  performed  hard  labor  during  available  time  in 
addition  to  performing  his  military  duties. 

Sec.  2.  Pay  detained  pursuant  to  the  sentence  of  a  court-martial  will  be 
detained  by  the  Government  until  the  soldier  is  furloughed  to  the  reserve,  dis- 
charged from  the  service,  or  mustered  out  of  active  Federal  service. 

Article  IX. 

DATE  ON   WHICH  OPERATIVE. 

This  order  shall  become  operative  on  March  1.  1017.  as  to  offenses  committed 
on  and  after  that  date  and  as  to  criminal  acts,  committed  prior  to  that  date, 
whose  maximum  punishment  was  not  prescribed  in  the  Executive  order  of 
;nber  5,  1914.  The  Executive  order  of  September  5,  1914,  published  in 
General  Orders,  No.  70,  War  Department,  1914,  prescribing  limits  of  punish- 
ment, .shall  remain  operative  as  to  offenses  committed  before  March  1,  1917, 
except  as  to  criminal  acts  whose  maximum  punishment  has  been  decreased  by 
this  order,  which  will  not  be  followed  by  severer  punishment  than  is  herein- 
prescribed. 

Woodbow   Wilson. 

The  White  Hot-se, 

December  15,  1916. 

[Note.— Nothing  in  the  foregoing  Executive  order  is  applicable  to  the 
National  Guard  not  in  the  service  of  the  United  States.  Sec.  102,  act  of  June  3, 
1916,  (39  Stat.,  208).]    (C.  J/.  C.  M.,  \o.  J,.) 


CHAPTER  XIV. 

COURTS-MARTIAL— PROCEDURE  OF  SPECIAL  AND  SUMMARY 

COURTS  AND  PROCEDURE  ON  REVISION. 

Section  I:  Special  courts-martial:  paR9 

350.  Procedure 

i  !1:  Summary  court-martial: 

351 .  Procedure  (a)  to  (£•) 1 7  I 

Ejection  HI*  Procedase  on  revision: 

352.  Of  general  or  special  courts-martial 

353.  Of  summary  courts-martial 

Section  I. 
SPECIAL  COURTS-MARTIAL. 

350.  Procedure. — The  procedure  of  and  before  special  courts-man 

will,  so  far  as  practicable,  be  identical  with  that  prescribed  for  g 

eral  courts-martial. 

Section  II. 

SUMMARY  COURTS-MARTIAL. 

351.  Procedure. —  (a)   The  summary  court  will  be  opened  at  a  stat- 
hour  daily,  except  Sundays,  for  the  trial  of  such  cases  as  have  been 
properly  referred  to  it  for  trial.    Trials  will  be  had  on  Sunday  only 
when  the  exigencies  of  the  service  make  it  necessary. 

(b)  The  summary  court  will  at  the  beginning  of  each  trial,  in 
the  order  of  such  trial,  give  to  and  enter  in  the  proper  place  on  the 
charges  in  the  case  a  serial  number. 

(c)  The  procedure  of  and  before  summary  courts-martial  will,  so 
far  as  practicable,  be  identical   with   that  prescribed   for   general 
courts-martial.    In  the  trial  of  a  case  the  summary  court  repres< 
both  the  Government  and  the  accused.     He  will  see  to  it  that  the 
interests  of  both  are  fully  conserved. 

(d)  When  the  accused  pleads  guilty  he  will — 

(1)  Explain  tohim  (a)  the  elements  constituting  the  offense  to  which 
he  has  pleaded  guilty,  and  (o)  the  maximum  punishment  therefor; 

(2)  Ask  him  whether  he  fully  understands  (a)  that  by  pleading 
guilty  thereto  he  admits  all  the  elements  of  the  crime  oi   off* 
and  (  b  )  that  he  may  be  punished  as  explained  to  him. 

In  any  such  case  he  will  also,  in  the  manner  below  stated,  make 
such  impartial  investigation,  if  any,  as  the  doing  of  justice  may  ap- 
pear to  require. 

(e)  In  the  absence  of  a  plea  of  guilty  he  will  make  a  full,  thorough, 
and  impartial  investigation  of  both  sides  of  the  entire  matter  before 
him.  On  behalf  of  the  (Jovernnient  he  will  obtain  the  attendance  of, 
Mvi'ar.  aaid  examine  such  witnesses,  and  will  obtain  such  other  evidence, 
documentary  and  other,  as  may  tend  or  may  appear  likely  to  tend  to 
establish  the  allegations  before  him  against  the  accused.  On  behalf 
of  the  accused  he  will,  in  the  absence  of  a  plea  of  guilty,  obtain  the 
attendance  of,  .-wear,  and  examine  such  witnesses,  and   will   obtain 

171 


1  7l}  MAM  i    \l.    FOB   COinW  B-MABTIAL, 

such  other  ei  idence,  documentary  and  other,  as  may  tend  to  disprove 

or  aegative  guiH  of  such  allegations,  or  explain  the  acts  or  omissions 

charged,  or  show  extenuating  circumstances  or  establish  good  charao- 

He  will  permit  the  accused  fully  to  examine  all  witnesses  that 

appear,  and  will,  t<>  tin-  fullest  extent,  aid  him  in  making  such  exami- 
nation.   He  will,  in  every  proper  way,  encourage  and  aid  the  accussed 

in  making  his  defense.  In  :ill  cases  he  will  extend  to  the  accused  full 
opportunity  to  testify  in  his  own  behalf  and  to  make  a.  statement  in 
denial,  in  explanation,  or  in  extenuation,  and  will,  before  arriving  at 
;,  finding,  assure  himself,  by  inquiry  of  the  accused,  that  he  has  no 
further  testimony  to  offer  and  no  further  statement  to  make. 

(/)  Having  done  so.  he  will,  as  SOOD  as  the  trial  is  concluded, 
arrive  a;  bis  findings  and  record  them  in  the  proper  place  on  the 
charges. 

)   In  the  event  of  the  conviction  of  a  soldier  he  will  consider  the 
evidence  of  previous  convictions,  if  any,  referred  to  him. 

(/,'  )  In  any  case  of  conviction  he  will,  as  soon  as  trial  is  concluded, 
impose  sentence  and  record  it  in  the  proper  place  upon  the  charges. 

[;)  In  the  event  of  a.  finding  of  not  guilty  of  all  the  charges  and 
specifications  he  will  record  an  acquittal  instead  of  a  sentence. 

(/,•)  Having  recorded  his  findings  and  an  acquittal  or  sentence,  he 
will  subscribe  his  name,  rank,  and  organization  as  summary  court, 
and  then  without  delay  transmit  the  record  of  trial  to  the  appointing 

authority. 

Section  III. 

PROCEDURE  ON  REVISION. 

352.  Of  general  or  special  courts-martial.— The  procedure  of  general 
or  special  courts-martial  when  reconvened  for  the  purpose  of  revising 
their  action  or  correcting  their  records  will  in  general  be  as  indicated 
by  the  form  of  record  of  proceedings  on  revision.  (Appendix  C>.) 
The  members  of  the  court  who  participated  in  the  fundings  and  sen- 
tence or  acquittal,  together  with  the  judge  advocate  and  assistant 
judge  advocate,  if  any,  will  assemble  and  the  court  will  meet.  It  is  not 
ordinarily  necessary  or  proper  that  the  accused  be  present,  but  there 
may  be  rare  cases  in  which  he  should  be  present.  The  judge  advocate 
will  read  to  the  court  the  indorsement  of  the  appointing  authority  re- 
turning the  record  and.  directing  the  reconvening,  or,  if  the  record  of 
!.;.  a  special  court-martial  has  been  returned  to  him  orally  for  revi- 
sion, may  state  brielh  to  the  court  the  views  and  desires  of  the  ap- 
pointing authority  as  communicated  to  him.  The.court  is  then  closed, 
considers  and  takes  action  upon  the  matter  before  it,  is  opened,and  ad- 
journs. As  the  action  so  to  be  taken  is  entirely  corrective,  a  case  will 
not  be  reopened  by  the  calling  or  recalling  of  witnesses  or  otherwise. 

353.  Of  summary  courts-martial.— What  has  hen  -aid  in  respect  to 
the  procedure  on  revision  by  general  or  special  courts-martial  will,  so 
far  as  applicable,  govern  such  procedure  by  summary  courts-martial. 


CHAPTER  XV. 
COURTS-MARTIAL- RECORDS  OF  TRIAL. 


Section  I:  General  courts-martial:  Page. 

354.  Record  required — how  authenticated 173 

355.  What  the  record  is  and  by  whom  prepared 174 

356.  Separate  record 174 

357.  Contents  of  record 174 

(a)  In  general 174 

(6)  In  detail ]  74 

(c)  Record  of  revision 177 

(d)  Clemency  recommendation 177 

Section  II:  Special  courts-martial: 

358.  Form  and  substance,  (a)  to  (h) ■ 177 

359.  Number  of  copies 178 

360.  Not  indexed 178 

361.  Briefed 178 

362.  Bound 178 

Section  III:  Summary  courts-martial . 

363.  Form  and  substance 178 

Section  IV:  Correction  of  records  of  trial: 

364.  Records  of  general  or  special  courts-martial ITS 

365.  Records  of  summary  courts-martial 179 

Section  V :  Disposition  of  records  of  trial 179 

366.  By  trial  judge-advocate 179 

(a)  Original  record 179 

(6)  Carbon  copy 179 

367.  By  appointing  authority 179 

(a)  Records  of  trial  by  general  courts-martial 179 

(6)  Records  of  trial  by  special  courts-martial 179 

(c)  Records  of  trial  by  summary  courts-martial 180 

((/)  Reports  of  trial  by  summary  courts-martial 180 

Section  VI:  Loss  of  records  of  trial: 

368.  Action  to  be  taken 180 


Section  I. 
GENERAL  COURTS-MARTIAL. 

354.  Record  required — how  authenticated. — Each  general  court- 
martial  shall  keep  a  separate  record  of  its  proceedings  in  the  trial 
of  each  case  brought  before  it,  and  such  record  shall  be  authenti- 
cated by  the  signature  ol  the  president  and  the  judge  advocate, 
but  in  case  the  record  can  not  be  authenticated  by  the  judge  advo- 

173 


171:'  MANUAL    FOB    COURTS-MARTIAL. 

cate,  by  reason  of  his  death,  disability,  or  absence,  it  shall  ho  signed 
by  the  president  and  assistant  judge  advocate,  if  any:  and  if  there  he 
no  assistant  judge  advocate,  or  in  case  of  bis  death,  disability,  or 
absence,  then  by  the  president  and  one  other  member  of  the  court. 
(A.  W 

355.  What  the  record  is  and  by  whom  prepared. — The  legal  record  of  a 
court-martial  is  that  record  which  is  finally  approved  and  adopted 
by  the  court  as  a  body  and  authenticated  by  the  signatures  of  its 
president  and  judge  advocate.  The  record  is  prepared  bv  the  judge, 
advocate  under  the  direction  of  the  court,  hut  the  eoiirt  as  a  whole 
i-  responsible  for  it.  and  the  instrument  which  it  approves  as  such 
is  it-  record,  however  the  same  may  have  been  made  up.  It  is  imma- 
terial to  the  siifliciency  of  a  record  whether  the  same  was  kept  or 
v>  ritten  by  the  judge  advocate  or  by  a  clerk  or  a  reporter  acting  under 
his  direction. 

356.  Separate  record. — Where  several  cases  are  tried  by  the  same 
court  the  record  of  each  ease  should  not  only  be  complete  and  inde- 
pendent in  itself  and  as  much  an  entirety,  both  in  form  and  in  sub- 
stance, as  if  it  were  the  only  case  tried,  but  should  contain  all  that  is 
essential  to  an  original  and  independent  official  paper,  and  should 
be  so  perfected  as  to  leave  no  material  detail  to  he  supplied  from  any 
pre\  ions  or  other  record.  Where  sentence  is  pronounced  the  record 
should  contain  everything  necessary  to  sustain  it  in  fact  and  in  law. 

357.  Contents  of  record.—  (a)  In  general— The  record  of  proceed- 
ings of  a  general  court-martial  will  in  each  case  show  that  all  statutory 
requirements  incident  to  that  case  have  been  complied  with ;  will  state 
a  complete  history  of  the  proceedings,  regular  and  irregular,  had  in 
open  court  in  that  case;  and  will  set  forth  the  material  conclusions 
arrived  at  in  both  open  and  closed  sessions.  The  only  acts  of  the 
court  or  members  not  properly  stated  or  set  forth  in  the  record  of 
trial  are  the  discussions,  votes,  etc.,  had  while  the  court  was  closed  for 
deliberation  upon  some  matter  such  as  a  challenge,  an  objection,  find- 
ings, sentence,  etc.  Such  discussions,  etc.,  are  no  part  of  the  formal 
record,  and,  as  to  votes  and  opinions  of  particular  members,  a  state- 
ment of  the>e  is  precluded  by  A.  W.  19.    It  is,  in  fact,  only  the 

U  of  a  deliberation  in  closed  session  that  is  to  be  entered  upon 
the  record. 

(A)  ///.  detail. — The  record  of  proceedings  in  each  case  will  show, 
among  other  thing-,  each  in  its  proper  place: 

1.  A  brief  of  itself  in  the  prescribed  form. 

2.  An  index  of  itself  in  the  prescribed  form. 

:;.  Whether  a  carbon  copy  of  the  record  of  trial  was  prepared, 
and  i f  so,  the  disposition  made  thereof. 

4.  The  place  and  dale  of  each  meeting  of  the  court. 


COURTS-MARTIAL, RECORDS    OF    TRIAL.  175 

T>.  The  fact  and  hour  of  each  meeting. 

6.  The  number,  date,  and  source  of  the  order  appointing  the  court 
and  of  eacli  amendatory  order,  each  stated  at  the  proper  place  in  the 
record  of  trial. 

7.  The  fact  of  the  presence  and  the  name.  rank,  and  organization 
of  each  member,  judge  advocate  and  assistant  judge  advocate  pn 

at  the  assembling  of  the  court  or  at  any  proceedings  in  revision. 

-.  The  fact  of  the  presence  and  the  name,  rank,  and  organizat 
of  each  new  member,  new  judge  advocate,  or  assistant  judge  advocate 
who  begins  to  participate  therein,  together  with  citation  of  the  au- 
thority for  his  so  doing. 

0.  The  fact  of  the  absence  and  the  name,  rank,  and  organization  of 
each  member  and  the  judge  advocate  or  assistant  judge  advocate  ab- 
sent at  the  assembling  of  the  court  or  at  any  proceedings  in  revi- 
together  with  a  statement  of  the  reason  for  such  absence. 

10.  That  the  accused  was  given  opportunity  to  introduce  counsel, 
and  the  action  thereon. 

11.  That  the  accused  and  his  counsel,  if  any,  were  present  during 
all  the  open  sessions  of  the  court  in  his  case  except  during  such  pro- 
ceedings in  revision  as  did  not  so  require. 

12.  The  name  of  each  person,  if  any.  who  acted  as  reporter  during 
any  part  of  the  trial,  and  that  each  such  person  was  sworn. 

13.  The  name,  rank,  and  organization  of  each  member  present 
who,  during  the  trial,  announced  himself  as,  or  was  alleged  to  be, 
ineligible  to  sit  as  a  member,  together  with  the  alleged  reason-  for 
such  ineligibility,  and  the  action  had  thereon. 

11.  The  name  of  each  person,  if  any,  who  acted  as  interpreter 
during  any  part  of  the  trial,  and  that  each  such  person  was  sworn. 

1.").  That  the  accused  was  informed  of  his  right  to  demand  a 
copy  of  the  record  of  his  trial,  and  was  asked  whether  or  not  he  de- 
sired a  copy  thereof,  together  with  his  answer  thereto. 

10.  That  the  order  appointing  the  court  and  each  amendatory 
order  was  read  to  the  accused  in  court  and  that  he  was  given  oppor- 
tunity to  challenge  each  member  of  the  court  who  sat  as  such  during 
any  part  of  the  trial  in  his  case,  and  the  action,  if  any,  had  thereon, 

17.  That  each  member  of  the  court  who  sat  as  such  during  any 
part  of  the  trial  of  the  case  and  each  judge  advocate  and  assistant 
judge  advocate  who  appeared  before  the  court  in  the  case  was  sworn. 

1^.  The  several  charges  and  specifications  upon  which  the  ac- 
cused was  arraigned. 

l->.  The  name,  rank,  and  organization  of  the  officer  who  sub- 
scribed the  charges. 

•_'".  The  pleas  of  the  accused  to  the  several  specifications  and 
charges  upon  which  he  was  arraigned. 


17G  MAMAl.   FOB   0OUBT6-MABTIAL. 

20$.  Tn  a  proper  case,  that  the  president  advised  the  accused  of  his 
legal  right  to  plead  the  statute  of  Limitations. 

21.  That  after  a  plea  of  guilty  the  president — 

-  Explained  to  the  accused  (1.)  the  elements  constituting  the 
offense  to  which  he  had  pleaded  guilty;  (•-')  the  maximum  punish- 
ment for  such  nihil 

{!>)  Asked  tin'  accused  whether  he  fully  understood  (1)  that  by 
pleading  guilty  thereto  he  admitted  all  the  elements  of  the  crime  or 
offense;  (2)  that  he  may  he  punished  as  explained  to  him. 

22.  The  answer  of  the  accused  thereto  and  the  action,  if  any,  had 
tlnreon. 

22$.  That  the  judge  advocate  read  (<»  the  court  the  paragraphs  of 
the  Manual  for  Courts-Martial  that  set  out  the  gist  of  the  offense  or 
offenses  charged. 

23.  That  the  several  witnesses  were  sworn. 

23$.  In  a  proper  case,  that  the  president  advised  a  witness  ignorant 
of  his  rights  that  he  might  decline  to  answer  any  question  where  his 
answer  might  tend  to  incriminate  him. 

24.  That  each  witness  recalled  to  testify  was  cautioned,  upon 
being  so  recalled,  that  he  was  still  under  oath. 

25.  That  if  the  accused  was  sworn  as  a  witness  he  was  so  sworn 
at  his  own  request. 

26.  The  questions  propounded  and  the  answers  given  by  each  of 
the  several  witnesses  as  nearly  as  possible  in  the  language  used, 

27.  That  the  accused  was  given  full  opportunity  to  examine  each 
witness  who  gave  testimony. 

28.  The  fact  of  the  introduction  of  each  deposition  and  other 
paper  received  in  evidence  by  the  court,  and  that  it  is  appended  to 
the  record  properly  marked. 

29.  The  exact  and  entire  text  read  by  the  pro-ecution  or  defense 
from  any  publication  to  the  court,  together  with  the  title  of  the 
publication,  the  edition  thereof,  and  the  proper  page  number. 

30.  In  a  proper  case,  that  the  accused  had  no  testimony,  or  no 
further  testimony,  to  offer  or  no  statement  to  make,  or  both. 

31.  That  when  the  accused  did  not  testify  or  make  a  statement 
the  president  explained  to  him  in  court  that  he  might  testify  in  his 
own  behalf  if  he  so  desired,  or  make  a  statement  in  denial,  in  expla- 
nation, or  in  extenuation. 

Hi'.    Each    motion,   objection,   argument,   statement,   etc.    made    in 
open  court  and  the  action,  if  any,  had  thereon. 
;;:;.  The  fact  of  each  closing  of  the  court. 

34.  The  fact  of  each  opening  of  the  court  and  that  the  accused 
and  his  counsel,  if  any.  were  present  when  the  court   was  opened. 

35.  I  f  a  note  was  made  of  recess  taken,  that  the  members,  the  judge 

advocate,  assistant  judge  advocate,  the  accused  and  his  counsel,  if 
any.  and  the  reporter,  if  any.  were  present  when  the  court  again 
proceeded  to  busine 

36.  In  a  joint  trial,  that  each  and  every  one  of  the  several  accused 
A\as  accorded  each  and  every  right  and  privilege  he  would  enjoy  if 
tried  separately,  and.  as  to  each  accused,  proper  findings  and  sentence 


COUBT&-MARTTAL — REC0BD9  OF    TRIAL.  177 

or  acquittal.  (The  end  here  sought,  however,  will  so  far  as  prac- 
ticable be  attained  by  the  use  of  appropriate  general  language  with- 
out unduly  burdening  the  record  with  repetitions.) 

37.  The  findings  of  each  of  the  several  specifications  and  charges 
not  disposed  of  as  a  result  of  a  special  plea. 

38.  In  case  of  the  conviction  of  a  soldier,  that  the  court  was 
opened  for  the  purpose  of  receiving  evidence  of  previous  convictions, 
and  its  aei  ion. 

30.  In  case  of  receipt  by  the  court  of  evidence  of  previous  convic- 
tion-, that  a  copy  of  each  is  appended  to  the  record,  properly  marked. 

40.  In  case  of  the  conviction  of  a  soldier,  that  the  accused  was 
asked  whether  the  evidence  of  previous  convictions,  if  any,  Avas  correct 
and  whether  the  statement  of  his  service,  as  shown  on  the  charge 
sheet,  was  correct,  and  his  answers'  thereto. 

41.  The  sentence,  acquittal,  or  other  action  finally  taken. 

-1:2.  In  case  of  conviction  of  an  offense  for  which  the  death  pen- 
alty is  made  mandatory  by  law,  that  two-thirds  of  the  members  of 
the  coma  concurred  in  the  finding. 

43.  In  case  of  a  sentence  to  sutler  'death,  that  two-thirds  of  the 
members  of  the  court  concurred  in  the  sentence. 

44.  The  adjournment. 

45.  That  the  judge  advocate,  or.  in  a  proper  case,  the  assistant 
judge  advocate,  subscribed  each  day's  proceedings. 

46.  That  the  president  and  the  judge  advocate,  or,  in  a  proper 
case,  the  president  and  an  assistant  judge  advocate,  or,  in  a  proper 
case,  the  president  and  one  other  member,  subscribed  the  record.  (In 
any  case  in  which  a  person  other  than  the  judge  advocate  subscribes 
the  record  in  lieu  of  the  judge  advocate,  the  facts  which  make  such 
action  necessary  will  appear.) 

-17.  In  case  the  judge  advocate  has  recorded  the  findings  and  sen- 
tence with  a  typewriter,  a  certificate  that  he  recorded  the  findings 
and  sentence  of  the  court. 

(c)  Record  of  <■  vision.— Subject  to  the  modifications  indicated  by 
the  form  for  proceedings  in  revision,  the  foregoing  will,  so  far  as 
applicable,  govern  in  respect  to  such  proceedings. 

'  <,/)    ,•  ■/?.— A.  recommendation  to  clemency 

will  nof  be  embodied  in  the  record  proper,  but  will  be  bound  into  the 
recordim  •  the  exhibits.     (See  par.  332.)     {CM. CM., 

;)  C  TT 

:  ion    II. 

SPECIAL  COURTS-MARTIAL. 

358.  Form  and  substance.— (a)  Except  as  otherwise  indicated  by  the 
form  for  record  of  trial  by  special  court,  or  elsewhere,  the  require- 
ment i  of  the  form  and  substance  of  such  records:  are  in  gen- 
eral the  same  as  for  records  of  trial  by  general  courts-martial. 

(M   NTeither  oral  testimony  received  by  the  court  nor  statements 
nor  arguments  made  will  be  recorded  unless  herein  specifically  re- 
quired or  ordered  by  competent  authority.     (See  par.  154  (d).) 
13 


178  MANUAL   FOR   COURTS-MARTIAL. 

('■)  Documentary  eviderj  .  the  originals  of 

Avhit It  can  properly  be  appended  to  the  record,  such  as  depositions, 
certain    I  I  mmendations   to   cl  er   similar 

papers,  will  be  so  appended. 

(d)   Neither  th(  Is  nor  copies  of  writings,  the  originals  of 

which  can  not  properly  be  appended  to  the  record,  such  as  certifi 
of  discharge,  recommend  to  character,  and  similar  papers, 

need  be  so  appei 

(c)  If  a  special  plea  is  made,  the  record  will  set  out  in  full  the 
proceedings  had  thereon,  including  all  testimony  taken  thereon  and 
statements  made  relative  thereto,  as  well  as  the  disposition  thereof 
made  by  the  court. 

(/)  Evidence  of  previous  convictions,  if  any,  will  not  be  appended 
to  the  record,  but  will  he  returned  by  the  trial  judge  advocate  with 
the  record  of  trial  to  the  appointing  authority. 

(g)  No  certificate  that  the  judge  advocate  recorded  typewritten 
findings  or  sentence  is  required. 

(//)  The  record  will,  at  the  end,  contain  sufficient  space  for  the 
action  of  the  reviewing  authority.  If  necessary  for  this  purpose,  an 
extra  sheet  will  be  included. 

359.  Number  of  copies. — One  copy  only  of  the  record  will  be  pre- 

360.  Not  indexed. — The  record  will  not  be  indexed. 

361.  Briefed. — The  record  will  be  briefed  as  prescribed  for  the 
record  of  a  general  court-martiaL 

362.  Bound. — The  record  will  be  securely  bound.  The  method  of 
binding  is  not  prescribed,  but  it  must  be  such  as  will  securely  fasten 

bher  all  th<  and  parts  that  comprise  the  record.     Easily 

removable  clips  or  paper  fasteners  will  not  be  used  for  this  purpose. 

TTON  III. 

SUMMARY  COURTS-MARTIAL. 

363.  Form  and  substance. — The  requirements  in  respect  of  the  form 
and  substance  of  records  of  trial  by  summary  court  are  indicated 
in  the  form  for  record  of  trial  by  summary  court.    The  findings  and 

[uittal  only  are  required  to  be  recorded  and  subscribed 
by  the  summary  court  as  such.  The  action  of  the  commanding  officer 
on  the  record,  with  dale  and  his  signature,  completes  the  records 
except  when  approval  by  superior  authority  is  required. 

i  iox  IV. 

CORRECTION  OF  RECORDS  OF  TRIAL. 

364.  Records  of  general  or  special  courts-martial.  A  record  of  trial 
by  general  or  ial  which  by  reason  of  omission, 
error,  or  other  defect  i-  substantially  incomplete  or  incorrect,  or  which 


COURTS-MARTIAL RECORDS   OF    TRIAL.  179 

in  the  opinion  of  the  appointing  authority  shows  improper  action 
by  the  court,  may  be  returned  by  the  appointing  authority  to  the.- 
president  of  the  court,  directing  that  the  court  be  reconvened  for 
such  action  as  may  be  appropriate.  In  any  such  case  the  defective 
part  of  the  record  will  be  left  unchanged  and  without  erasure  or 
interlineation,  and  the  record  of  proceedings  in  revision  will  show 
specifically,  ordinarily  by  page  and  line,  the  part  of  the  original 
record  that  is  changed  and  the  change  made.     (See  par.  352.) 

3G5.  Records  of  summary  courts-martial. — A  record  of  trial  by  sum- 
mary court  which  by  reason  of  omission,  error,  or  other  defect,  is  sub- 
stantially incomplete  or  incorrect,  or  which,  in  the  opinion  of  the  ap- 
pointing authority,  shows  improper  action  by  the  court,  may  be  re- 
turned by  the  appointing  authority  to  the  summary  court  for  such 
action  as  may  be  appropriate.     (See  par.  353.) 

Section  V. 

DISPOSITION  OF  RECORDS  OF  TRIAL. 

366.  By  trial  judge  advocate. — (a)  Original  record. — The  judge  advo= 
cate  of  a  court-martial  shall,  with  such  expedition  as  circumstance- 
may  permit,  forward  to  the  appointing  authority,  or  to  his  successo: 
in  command,  the  original  record  of  the  proceedings  of  the  court  ii 
the  trial  of  each  case.  The  record  should  be  forwarded  as  an  in 
closure  to  an  indorsement  by  the  judge  advocate,  returning  to  tin 
appointing  authority  the  charges  and  other  papers  referred  to  him 
and  forwarding  at  the  same  time  the  required  copy  of  the  reporter's 
voucher.  The  original  record  of  the  proceedings  of  a  general  court- 
martial  appointed  by  the  President  will  be  sent  by  the  trial  judge 
advocate  directly  to  the  Judge  Advocate  General  of  the  Army. 

(b)   Carbon  copy. — The  judge  advocate  of  a  general  court-martia' 

shall,  if  the  accused  so  desires,  deliver  to  the  accused,  after  it  has  been 

corrected,  completed,  and  certified  as  a  true  copy  except  as  to  find- 

.  sentence,  and  exhibits  not  copied,  the  carboncopy,  when  one  is 

prepared,  of  the  record  of  his  trial. 

367.  By  appointing   authority. —  (a)    Records   of   trial   by   general 
irtial. — After  having  been  acted  upon  by  the  officer  appoint 
ing  the  court,  or  by  the  officer  commanding  for  the  time  being,  tin 
record  of  each  trial  by  general  court-martial,  with  the  decisions  air 
orders  <>!'  the  appointing  authority  made  thereon,  accompanied   i 
the  statement  of  service,  if  there  be  any,  and  five  copies  of  the  ordei 
if  there  be  any,  promulgating  the  case,  will  be  transmitted  dir< 
to  the  Judge  Advocate  General  of  the  Army. 

(b)  Records  of  trod  by  special  courts-martial. — After  having  been 
acted  upon  by  the  officer  appointing  the  court,  or  by  the  officer  com 
manding  for  the  time   being,  the  record  of  each  trial   1>; 


180  MANUAL    FOR    COUBTS-MABT] 

court-martial,  accompanied  by  a  copy  of  the  order  publishing  the 
orwarded,  ordinarily  without  indorsement  or  letter  of 
transmittal,  to  the  officei  g  general  court-martial  jurisdic- 

tion over  the  command,  there  to  be  fried  In  the  office  of  the  judge  ad- 
,.  until  th(  il  information  in  it  required  for  the  annual 

report  of  the  judge  advocate  has  been  secured,  when  it  may  be  de- 
stroy 

(,  i    .  t  of  trial  by  summary  courts-martial. — The  several  rec- 

.f  trial  by  summary  courts-martial  within  a  command  shall  be 
filed  together  in  the  office  of  the  commanding  officer  and  shall  consti- 
tute the  summary-court  record  of  the  command. 

(d)  Reports  of  trial  by  summary  courts-martial. — The  report  of 
trial  by  summary  court  (copy  of  record  of  trial)  will,  with  the  least 
practicable  delay  after  action  has  been  taken  on  the  sentence,  be  com- 
pleted and  transmitted  to  the  officer  exercising  general  court-martial 
jurisdiction  over  the  command,  there  to  he  filed  in  the  office  of  the 
judge  advocate  until  the  statistical  information  in  it  required  for  the 
annual  report  of  the  judge  advocate  has  been  secured,  when  it  may  be 
destroyed.    (C.  M.  C.  M.,  No.  I) 

Section  VI. 
LOSS  OF  RECORDS  OF  TRIAL. 

368.  Action  to  be  taken.— When,  prior  to  action  by  the  reviewing 
authority,  a  record  of  trial  by  court-martial  is  lost  or  destroyed,  a 
new  record  of  trial  in  the  case  will,  if  practicable,  be  prepared  and 
will  become  the  record  of  trial  in  the  case.  Such  new  record  will, 
however,  only  be  prepared  when  the  extant  original  notes  or  other 
sources  are  such  as  to  enable  the  preparation  of  a  complete  and  ac- 
curate record  of  the  case.  In  any  case  of  loss  of  a  record  of  trial  by 
court-martial  the  summary  court,  judge  advocate,  or  other  proper 
person  will  fully  inform  the  appointing  authority  as  to  the  facts  and 
as  to  the  action,  if  any,  taken. 


CHAPTER  XVI. 

COURTS-MARTIAL— ACTION  BY  APPOINTING  OR 
SUPERIOR  AUTHORITY. 


Section  I:  Action  on  the  proceedings:  Page. 

369.  Appointing  authority 182 

370.  Record  of  action  by  appointing  authority 182 

371 .  Sentence  not  effective  until  approved 182 

372.  Effect  of  approval  and  disapproval 182 

373.  Manner  of  approval 182 

374.  The  officer  commanding  for  the  time  being 183 

375.  Action  when  accused  is  transferred  to  another  department 183 

376.  Appointing  authority  must  act  in  person 183 

377.  Powers  incident  to  power  to  approve 184 

37S.  Confirmation  of  sentences 185 

379.  Powers  incident  to  power  to  confirm 185 

3S0.  Mitigation  of  punishment — definition 186 

381 .  Mitigation  or  remission  of  sentences 186 

3S2.  Mitigation,  when  permissible 186 

383.  Effect  of  remission  at  time  of  approval 186 

384.  Commutation  of  sentences 186 

385.  Adding  to  sentences 187 

386.  Sentences  in  excess  of  legal  limit 187 

387.  Action  on  sentence  may  be  modified  before  publication 187 

388.  Where  conviction  of  desertion  is  disapproved  grounds  to  be  stated 187 

389.  Place  of  confinement-  change  of .". . . .'. '. . .  187 

390.  Loss  of  files 187 

391.  Suspension  of  sentences  until  pleasure  of  President  lie  known 188 

392.  Suspension  of  sentences  pot  invoh  ing  dishonorable'  discharge 188 

393.  Suspension  of  sentences  of  dishonorable  discharge 188 

394.  Place  of  confinement  to  be  designated  by  reviewing  authority 189 

395.  Forms  for  action  on  sentence  by  reviewing  authority 189 

396.  When  confinement  in  a  penitentiary  may  be  directed 189 

397.  When  confinement  in  disciplinary  barracks  will  be  directed 189 

398.  When  confinement  in  post  will  be  directed 190 

399.  Cooperation  of  reviewing  authorities 190 

400.  Court-martial  orders 190 

Section  II:  Action  after  promulgation  of  sentence: 

401.  Date  of  beginning  of  sentence 190 

402.  Applications  for  clemency 191 

403.  Remission  of  suspended  sentence  of  dishonorable  discharge 191 

40-1.  Clemency  applications  limited  to  one  in  six  months 191 

181 


182  MANUAL 

noN  T. 
ACTION  ON  THE  PROCEEDINGS. 

369.  Reviewing  authority. — The  term  reviewing  ity  is  em- 
ployed to  designate  the  officer  whose  province  and  duty  it  is  to 
take  action  upon  the  proceedings  of  a  court-martial  after  the  - 

are  terminated,  and,  when  tl  ted  to  him  Eor  such 

action,  to  approve  or  disapprove  the  tal.    This 

officer  is  ordinarily  the  commander  who  has  convened  the  court.  In 
his  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  his  successor  in  command,  or,  in  the  Language  of  A.  W. 
46,  "the  officer  commanding  for  the  time  being"  is  invested  (by 
that,  article)   with   the  same  authority  to  pass  upon   the  pro* 

and  order  the  execution  of  the  sentence  in  a  case  of  con- 
viction. (Digest,  j>.  554,  XIV.  A,  1.)  The  term  "appointing  au- 
thority*'' is  sometimes  employed  1<>  denote  the  reviewing  authority, 
but  the  Ian  i  he  more  correct  one.     {C.  M.C.  M.,  No. 

370.  "Record  of  action  by  reviewing  authority. — Upon  the  receipt  of 
the  proceedings  by  the  reviewing  authority  he  will  state  at  the  end 
there*  f  in  each  ease  his  decisions  and  orders.    (^'.  M.  C.  J/..  .V,;.  ;.) 

371.  Sentence  not  effective  until  approved. — No  sentence  of  a  court- 
la]  shall  be  carried  into  execution  until  the  same  shall  have  been 

approved  by  the  reviewing  authority  as  defined  in  paragraphs  B69 
and  374.    Upon  acquittal,  or  upon  conviction  where  th<  does 

include  dishonorable  di.-charge  or  confinement,  the  ■  Lould 

be  released   from  confinement  or  arrest  as  provided  in  paragraph 
The  acquittal  is  not  effective  until  it  has  been  acted  on  by  the 
proper  reviewing  authority.     But  the  announcement  of  the  result 

ial  in  orders  is  not  essential  to  the  validity  of  the  sentenc 
acquittal,     it  is  not  necessary  for  the  reviewing  authority  to  approve 
the  -findings  and  proa  <  dings.    {('.  M.  C.  M,9  No.  4-) 

372.  Effect  of  approval  and  disapproval. — While  approval  gives  life 
and  operation  to  a  sentence,  disapproval,  on  the  other  hand,  nullities 
it.  A  disapproval  of  the  sentence  of  a  court-martial  by  the  reviewing 
authority  is  not  -a  mere  expression  of  disapprobation  but  is  a  final 

ing       end  to  i  in  the  particular 

ring  them  entirely  nugatory  and  inoperative;  and  the 

effect  <>f  a  disapproval  is  the  same  whether  or  not  the  officer 

disapproving  is  authorized  finally  to  confirm  the  •■    But  to 

be  thus  operative  a  disapproval  should  be  expressed.    The  effect  i  £ 

the  entire  disapproval  of  a  sentence  is  not  merely  to  annul  the  same 

.  prevent  the  accruing  <  I  ability  or 

I'eil  ure,  which  woidd  have  been  incidental  upon  an  approval.  (Di- 
gest ,  p.  563,  XI  \     .  .  (1).) 

373.  Manner  of  approval. — The  approval  of  the  sentence  should  prop- 
erly be  of  a  formal  chanu  b  p.    The  article  requires  the  >■ 

be  approved.  A  formal  approval  of  the  findings  only  does  not 
meet  the  requirement  of  the  article.     The  sentence  should  be  ap- 


COURTS-MARTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     183 

proved  by  "  the  officer  appointing  the  court,"  or  the  officer  command 
ing  for  the  time  being,  although — as  in  a  case  of  a  sentence  of  dis- 
missal in  time  of  peace — he  may  not  be  empowered  finally  to  confirm 
and  give  effect  to  the  sentence.  His  approval  is  required  as  showing 
that  he  does  not,  as  he  is  authorized  to  do,  disapprove.  (Digest,  f 
174.  CIV,  A,  1,  and  A,  2.) 

374.  The  officer  commanding  for  the  time  being. — The  "  officer  com- 
manding for  the  time  being,"  indicated  in  A.  W.  46,  is  an  officer  who 
has  succeeded  to  the  command  of  the  officer  who  appointed  the  court; 
as  where  the  latter  has  been  regularly  relieved  and  another  officer  as- 
signed to  the  command;  or  where  the  command  of  the  appointing 
officer  has  been  discontinued,  and  merged  in  a  larger  or  other  com- 
mand, at  some  time  before  the  proceedings  of  the  court  are  com- 
pleted and  required  to  be  acted  upon.  Thus  where,  under  these  cir- 
cumstances, a  separate  brigade  has  ceased  to  exist  as  a  distinctive  or- 
ganization  and  been  merged  in  a  division,  or  a  division  has  been  simi- 
larly merged  in  an  army  or  department,  the  commander  of  the  di- 
vision in  the  one  case  and  of  the  army  or  department  in  the  other,  is 
"  the  officer  commanding  for  the  time  being,"  in  the  sense  of  the  ar- 
ticle. So  where  a  court  was  convened  by  a  division  commander,  but 
before  the  reviewing  authority  had  acted  upon  the  sentence  the  di- 
vision was  discontinued  and  the  organizations  composing  it  were  dis- 
tributed among  the  divisions  of  another  corps,  it  was  held  that  the 
commander  of  this  other  corps  was  the  officer  "  commanding  for  the 
time  being."  So,  where,  before  the  proceedings  of  a  special  court 
convened  by  a  post  commander  were  completed,  the  post  command 
had  ceased  to  exist  and  the  command  became  distributed  in  the  de- 
partment, it  was  held  that  the  department  commander,  as  the  legal 
successor  of  the  post  commander,  was  the  proper  authority  to  approve 
the  sentence.  (Digest,  p.  174,  CIV,  C,  1 ;  p.  175,  CIV,  C,  2,  and  see 
C,4.) 

375.  Action  when  accused  is  transferred  to   another  department. — . 
[Where  an  accused  avIio  has  been  tried  by  general  court-martial  pro 
ceeds  with  his  command,  from  the  department  in  which  he  has 
tried  to  another  department,  before  action  has  been  taken  on  1      case 
by  the  reviewing  authority,  the  commanding  general  of  the  d<  | 
ment  in  which  he  has  been  tried  is  the  proper  reviewing  author] 

the  case.     (Digest,  p.  554,  XIV,  A,  3.) 

376.  Reviewing  authority  must  act  in  person. — The  reviewing 
it  y  can  not  delegate  to  an  inferior  or  other  officer  his   h 
reviewing  authority  as  conferred  by  the  fori 

nor  can  he  authorize  a  staff  or  other  officer  I 

ion  and  orders  on  the  proceedings,     lie  will 
hand  the  action  taken  by  him  on  the  proceedii  gs,  his  rank 
fact  that  he  is  the  commanding  officer  appearing  after  h 
{CM.  CM., No.  40 


184  MANUAL  FOR   COURTS-MARTTAL. 

377.  Powers  incident  to  power  to  approve. — The  power  to  approve  the 
sentence  of  a  court-martial  shall  be  held  to  include: 

(a)  The  power  to  approve  or  disapprove  a  finding  and  to  ap- 
prove only  so  much  of  a  finding  of  guilty  of  a  particular  offense 
as  involves  a  rinding  of  guilty  of  a  lesser  included  offense  when,  in 

.  pinion  of  the  authority  having  power  to  approve,  the  evidence 
of  record  requires  a  finding  of  only  the  lesser  degree  of  guilt;  and 

(b)  The  power  to  approve  or  disapprove  the  whole  or  any  part 
of  the  sentence.     (A.  W.  47.) 

The  authority  here  conferred  to  a/pprovi   only  so  much  of  a  find- 
ing of  guilty  as  involves  a  finding  of  guilty  of  a  lesser  included  of- 
is  coextensive  with  the  power  of  courts-martial  to  convict  of 
lesser  included  offenses.     The  more  frequent  occasions  for  the  ex- 
i  of  this  authority  are  indicated  below. 

(1)  Affray. 

(a)  Assault. 

(b)  Breach  of  peace  (disorder). 

(2)  Assault  with  intent  to  commit  murder. 

(a)  Any  of  the  minor  degrees  of  assault. 

(3)  Battery. 

(a)  Assault. 

(4)  Murder. 

(a)  Manslaughter. 

Voluntary. 
Involuntary. 

(b)  Attempt  to  commit. 

(c)  Felonious  assault. 

(d)  Assault  and  battery. 

(5)  Mayhem. 

(a)  Assault  with  intent  to  commit. 
{b)  Assault  and  battery. 

(6)  Eape. 

(a)  Assault  with  intent  to  commit  rape. 

(b)  Assault  and  battery. 

(c)  Assault. 

(7)  Robbery. 

(a)  Assault  with  intent  to  rob. 

(b)  Larceny  from  the  person. 
(<?)  Assault  and  battery. 

(d)  Assault. 
(3)  Desertion. 

(a)  Attempt  to  desert. 

(b)  Absence  without  leave. 

(9)  Willful  disobedience  of  superior  officer. 
(a)  Failure  to  obey. 


COURTS-MAKTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     185 

(10)  Willful  disobedience  of  noncommissioned  officer. 

(a)  Failure  to  obey. 

(11)  Refusal  to  receive  and  keep  prisoners. 

(a)  Failure  to  receive  and  keep. 

(12)  Quitting  post  to  plunder  or  pillage. 

(a)   Quitting  post. 

(13)  Drunk  on  duty. 

(a)  Drunk. 

(14)  Conduct  unbecoming  an  officer  and  gentleman. 

(a)  Conduct  to  the  prejudice  of  good  order  and  military 
discipline. 

378.  Confirmation  of  sentences. — In  the  following  cases  confirmation 
by  the  President  is  required  before  the  sentence  of  a  court-martial  is 
carried  into  execution: 

(a)  Any  sentence  respecting  a  general  officer. 

(b)  Any  sentence  extending  to  the  dismissal  of  an  officer  except 
that  in  time  of  war  a  sentence  extending  to  the  dismissal  of  an 
officer  below  the  grade  of  a  brigadier  general  may  be  carried  into 
execution  upon  confirmation  by  the  commanding  general  of  the 
Army  in  the  field  or  by  the  commanding  general  of  the  territorial 
department  or  division. 

(c)  Any  sentence  extending  to  the  suspension  or  dismissal  of  a 
cadet,  and 

(d)  Any  sentence  of  death,  except  in  the  cases  of  persons  convicted 
in  time  of  war  of  murder,  rape,  mutiny,  desertion,  or  as  spies,  and  in 
such  excepted  cases  a  sentence  of  death  may  be  carried  into  execution 
upon  confirmation  of  the  commanding  general  of  the  Army  in  the 
field  or  by  the  commanding  general  of  the  territorial  department  or 
division. 

When  the  authority  competent  to  confirm  the  sentence  has  already 

acted  as  the  approving  authority  no  additional  confirmation  by  him 

is  necessary.    (A.  W.  48.) 

[Note. — For  statement  by  whom  a  sentence  of  dismissal  from  service  or  dis- 
honorable discharge  Imposed  by  National  Guard  courts-martial,  not  in  the  serv- 
ice of  the  United  States,  must  be  approved  before  its  execution,  see  sec.  107, 
act  of  June  3,  1016,  39  Stat.,  166,  Appendix  2,  post.] 

379.  Powers  incident  to  power  to  confirm.— The  power  to  confirm  the 
sentence  of  a  court-martial  shall  be  held  to  include — 

(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to  confirm 
so  much  only  of  a  finding  of  .guilty  of  a  particular  offense  as  involves 
a  finding  of  guilty  of  a  lesser  included  offense  when,  in  the  opinion 
of  the  authority  having  power  to  confirm,  the  evidence  of  record 
requires  a  finding  of  only  the  lesser  degree  of  guilt :  and 

(b)  The  power  to  confirm  or  disapprove  the  whole  or  any  part  of 
the  sentence,    (A.  W.  40.) 


186  .UAXIAL   FOR   COURTS-MARTIAL. 

The  manner  of  the  exercise  of  the  power  conferred  upon  confirm- 
ing authorities  is  indicated  in  the  remarks  in  paragraph  377  relating 
to  the  power  incident  to  approve  a  sentence  as  provided  for  under 
A.  W.  17. 

380.  Mitigation  of  punishment— Definition.— By  mitigating  a  punish- 
ment is  meanl  a  reduction  in  quantity  or  quality,  the  general  nature 
of  the  punishment  remaining  the  same.     (Digest,  p.  ITT,  CXTT,  B.) . 

381.  Mitigation  or  remission  of  sentences. — The  power  to  order  the 
ition  of  the  sentence  adjudged  by  a  court-martial  shall  be  held 

to  include  inter  alia  the  power  to  mitigate  or  remit  the  whole  or 
►art  of  the  sentence,  but  no  sentence  of  dismissal  of  an  officer 
and  no  sentence  of  death  shall  be  mitigated  or  remitted  by  any 
authority  inferior  to  the  President.  Any  unexecuted  portion  of  a 
nee  adjudged  by  a  court-martial  may  be  mitigated  or  remitted 
by  the  military  authority  competent  to  appoint,  for  the  command, 
exclusive  of  penitentiaries  and  the  United  States  Disciplinary  Bar- 
racks, in  which  the  person  under  sentence  is  held,  a  court  of  the 
kind  that  imposed  the  sentence,  and  the  same  power  may  be  exer- 
cised by  superior  military  authority;  but  no  sentence  extending  to 
the  dismissal  of  an  officer  or  loss  of  files,  no  sentence  of  death,  and 
no  sentence  approved  or  confirmed  by  the  President  shall  be  remitted 
or  mitigated  by  any  other  authority.  The  power  of  remission  and 
mitigation  extends  to  all  uncollected  forfeitures  adjudged  by  sen- 
tence of  a  court-martial.     (A.  W.  50.) 

382.  Mitigation,  when  permissible. — A  sentence  providing  for  dis- 
honorable discharge  only  can  not  be  mitigated.     Subject  to  the  limi- 

d  in  the  Executive  order  prescribing  maximum  limits 
of  punishment,  forfeiture  of  pay  adjudged  by  a  court-martial  may  be 
mitigated  to  detention  of  pay  for  a  like  period,  or  less,  and  confine- 
ment at  hard  labor  may  be  mitigated  to  hard  labor  without  confine- 
ment for  a  like  period  or  less.  A  sentence  of  dishonorable  discharge, 
forfeiture  of  all  pay  and  allowances  due  and  to  become  due,  and 
!>(  ;it  hard  labor  for  a  definite  period  may  be  mitigated  to 
confinement  at  hard  labor  and  a  forfeiture  of  two-thirds  of  the 
pay  per  month  for  a  period  not  exceeding  that  prescribed 
in  tit. 

3S3.  Effect  of  remission  at  time  of  approval.— The  action  of  a  review- 
ing authority  in  approving  a  sentence  and  simultaneously  remitting 
a  portion  thereof  is  legally  equivalent  to  approving  only  the  sentence 
L  (Bui.  1".  p.  .\  AVarDept.,  1912.) 
384.  Commutation  of  sentences. — The  power  to  commute  sentences 
imposed  by  military  tribunals,  not  being  vested  in  military  com- 
manders,  can  be  by  the  President  alone.     Therefore   a 

department  commander  can  not  commute  to  confinement  at  hard 
laboi  •<••  of  dishonorable  discharge  awarded  an  enlisted  man. 


COURTS-MARTIAL — APPOINTING  OR  SUPERIOR  AUTHORITY.     18? 

385.  Adding-  to  sentences. — Neither  the  reviewing  authority  nor  an;- 
other  officer  is  authorized  to  add  to  the  punishment  imposed  by  i 
court-martial.  Where  post  orders  classify  all  soldiers  at  a  post 
according  to  their  conduct,  and  provide  that  soldiers  undergoing 
sentence  of  a  court-martial  will  be  denied  pass  privileges  until  the 
sentence  is  completed,  such  a  provision  adds  to  the  punishment 
and  is  unlawful.     (Bui.  4G,  p.  7,  War  Dept.,  1914.) 

386.  Sentences  in  excess  of  legal  limit. — Where  a  sentence  in  excess  of 
igal  limit  is  divisible,  such  part  as  is  legal  may  be  approved  and 

executed.  (Digest,  p.  5G1,  XIV,  E,  9,  c.)  Thus:  When  a  sentence 
to  confinement,  hard  labor  without  confinement,  forfeiture,  or  de- 
tention of  pay  is  in  excess  of  the  legal  limit,  the  part  within  the  limit 
is  legal  and  may  be  executed. 

387.  Action  on  sentence  may  be  modified  before  publication. — Action 
taken  by  a  reviewing  officer  upon  the  proceedings  and  sentence  of 
a  court-martial  may  be  recalled  and  modified  before  it  has  been 
published  and  the  party  to  be  affected  has  been  duly  notified  of  the 
same.  After  such  notice  the  action  is  beyond  recall.  An  approval 
can  not  then  be  substituted  for  a  disapproval  or  vice  versa.  (Digest^ 
p.  565,  XIV,  E,  9  e.) 

388.  Where  conviction  of  desertion  is  disapproved — Grounds  to  be 
stated. — Where  the  reviewing  authority  disapproves  a  sentence  for 
desertion  he  should  indicate  in  his  review  whether  his  disapproval 
is  based  upon  his  belief  that  the  evidence  does  not  show  an  intent  to 
desert,  or  is  for  some  other  reason  that  assumes  the  accused  was 
guilty  as  charged.  The  reason  for  so  indicating  the  grounds  of  his 
disapproval  is  to  enable  the  Quartermaster  Corps  to  decide  whether 
the  pay  and  allowances  due  at  date  of  alleged  desertion  should  be 
forfeited  and  whether  the  reward  paid  for  apprehending  the  deserter 
and  the  expenses  incurred  by  the  Government  in  transporting  him 
from  point  of  apprehension,  delivery,  or  surrender  to  the  station 
of  his  company  or  detachment  or  to  the  place  of  trial,  including 
the  cost  of  transportation  of  the  guard,  should  be  set  against  the 
alleged  deserters  pay,  under  A.  R.  127,  1913.  (12  Comp.,  328;  15 
idi  ///.,  661.) 

389.  Place  of  confinement— Change  of.— The  authority  which 
designated  the  place  of  confinement  or  higher  authority  may  chi 
the  place  of  confinement  of  any  prisoner  under  the  jurisdicti.-: 
such  authority:  but  when  a  military  prison  or  post  has  been  d< 
nated  as  the  place  of  confinement  of  a  prisoner  under  sentena 
power  is  competent  to  increase  the  punishment  by  designate 
penitentiary  as  the  place  of  confinement. 

390.  Loss  of  files. — Where  a  court-martial  convened  by  a  depart  m 
commander  for  the  trial  of  an  officer  sentences  the  accused  to  the 


188  MANUAL   TOR   COURTS-MAETIAL. 

punishment  of  a  loss  of  files,  the  approval  of  the  appointing 
authority  is  sufficient  to  give  full  effect  to  the  sentence,  and  no  action 
by  superior  authority  can  add  anything  to  its  effect  or  conclusiveness. 
Confirmation  by  the  President  is  not  .essential  to  the  execution  of 
such  a  sentence;  and  the  fact  that  the  same  involves  a  change 
in  the  Army  Register  does  not  make  requisite  or  proper  a  revision 
of  the  case  by  the  "War  Department.  The  department  commander, 
however,  can  not  restore  the  files,  such  action  can  be  taken  only  by 
the  President.     {See  A.  W.  50.) 

391.  Suspension  of  sentences  until  pleasure  of  President  be  known. — 
Any  officer  who  has  authority  to  carry  into  execution  the  sentence 
of  death,  or  of  dismissal  of  an  officer,  may  suspend  the  same  until  the 
pleasure  of  the  President  shall  be  known;  and  in  such  case,  he  shall 
immediately  transmit  to  the  President  a  copy  of  the  order  of  sus- 

ion,  together  with  a  copy  of  the  proceedings  of  the  court.     (A. 
W.  51.) 

392.  Suspension  of  sentences. — The  authority  competent  to  order 
the  execution  of  the  s<  ntence  of  a  court-martial  may,  at  the  time  of 
the  approval  of  such  sentence,  suspend  the  execution,  in  whole  or  in 
part,  of  any  such  sentence  as  docs  not  extend  to  death,  and  may 

re  (he  person  under  sentence  to  duty  during  such  suspension. 

A  sentence,  or  any  part  thereof,  which  has  been  so  suspended  may  he 

remitted,  in  whole  or  in  part,  except  in  cases  of  persons  confined  in 

the  United  States  Disciplinary  Barracks  or  its  branches,  by  the  officer 

who  suspended  the  same,  by  his  successor  in  office,  or  by  any  officer 

exercising  appropriate  court-martial  jurisdiction  over  the  command 

in  which  the  person  under  sentence  may  he  serving  at  the  time,  and, 

subject   to  the  foregoing  exceptions,  the  same  authority  may  vacate 

rder  of  suspension  at  any  time  and  order  the  execution  of  the 

entence  or  the  suspended  pari  thereof  in  so  far  a-  the  same  shall  not 

■  heen  previously  remitted.     The  death  or  honorable  disci 

person  under  suspended  -entence  shall  operate  as  a  complete 

remission  of  any  unexecuted  or  unremitted  pari  of  such  sentence. 

(A.  W.  52.)     (See  Ch.  X,  Army  appropriation  act  of  duly  9,  1918: 

Public  NTo.  L9a,  65th  Cong.)     (C.  M.  C.  J/..  No.  ',.) 

393.  Execution  or  remission — Confinement  in  disciplinary  barracks.— 
When  a  sentence  of  dishonorable  discharge  has  heen  suspended  until 
the  soldier's  release  from  confinement,  the  execution  or  remission  <>f 

;  .n't  of  hi-  sentence  shall,  i  f  (he  soldier  he  confined  in  the  United 
Disciplinary  Barracks  or  any  branch  thereof,  be  directed  by 
the  Secretary  of  War.     |  A.  W.  53.)     (See  Ch.  X.  Army  appropria- 
tion aet  of  d'nly  o.  1918:  Public  No.  lr>:h  65th  Cong.) 

A.  W.  52  and  53  embody  in  court-martial  practice  the  modern  prin- 
ciple of  the  suspended  sentence.     This  principle  is  of  peculiar  signifi- 


COURTS-MARTIAL APPOINTING  OR  SUPERIOR  AUTHORITY.        189 

cance  in  Army  administration  in  time  of  war,  since  it  not  only  enables 
the  reviewing  authority  to  extend  to  soldiers  an  opportunity  to  re- 
deem themselves  bu1  also  serves  to  save  for  the  Army  the  highest 
possible  percentage  of  the  man  power  of  the  Nation.    ((  .  M.  0.  J/., 

No.  4-) 

394.  Place  of  confinement  to  be  designated  by  reviewing-  authority. — 
When  the  sentence  of  a  general  court-martial  prescribes  dishonor- 
able discharge  and  confinement,  so  much  of  the  sentence  as  relates 
to  confinement  will  be  expressed  in  substantially  the  following  form: 

To  be  confined  at  hard  labor  at  such  place  as  the  reviewing  authority  may 

direct  for  [leaving  to  the  reviewing  authority  the  designation  of  the 

place  of  confinement.] 

395.  Forms  for  action  on  sentence  by  reviewing  authority. —  (See 
Appendix  10.) 

396.  When  confinement  in  a  penitentiary  may  be  directed. — Except  for 
desertion  in  time  of  war,  repeated  desertion  in  time  of  peace,  and 
mutiny,  no  person  shall  under  the  sentence  of  a  court-martial  be 
punished  by  confinement  in  a  penitentiary  unless  an  act  or  omission 
of  which  he  is  convicted  is  recognized  as  an  offense  of  a  civil  nature 
by  some  statute  of  the  United  States,  or  at  the  common  law  as  the 
same  exists  in  the  District  of  Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless  also  the  period  of  confinement  author- 
ized and  adjudged  by  such  court-martial  is  one  year  or  more:  Pro- 
vided, That  when  a  sentence  of  confinement  is  adjudged  by  a  court- 
martial  upon  conviction  of  two  or  more  acts  or  omissions  any  one 
of  which  is  punishable  under  these  articles  by  confinement  in  a  peni- 
tentiary, the  entire  sentence  of  confinement  may  be  executed  in  a 
penitentiary :  Provided  further,  That  penitentiary  confinement  here- 
by authorized  may  be  served  in  any  penitentiary  directly  or  indi- 
rectly under  the  jurisdiction  of  the  United  States:  Provided  further, 
That  persons  sentenced  to  dishonorable  discharge  and  to  confine- 
ment not  in  a  penitentiary  shall  be  confined  in  the  United  States 
Disciplinary  Barracks  or  elsewhere  as  the  Secretary  of  "War  or  the  re- 
viewing authority  may  direct,  but  not  in  a  penitentiary.     (A.  W.  42.) 

[Note. — For  a  full  statement  of  the  law  relating  to  penitentiary  confinement, 
the  War  Department  policy  with  reference  to  the  segregation  of  general  prison- 
ers convicted  of  offenses  punishable  with  penitentiary  confinement  and  require- 
ments placed  upon  appointing  authorities  in  stating  the  law  applicable  where 
such  confinement  is  directed,  see  Chap.  XIII,  Sec.  II,  pars.  337,  339,  and  341.] 

397.  When  confinement  in  Disciplinary  Barracks  will  be  directed. — 
The  United  States  Disciplinary  Barracks  at  Fort  Leavenworth, 
Ivans.,  or  one  of  its  branches  will  be  designated  as  the  place  of  con- 
finement of  all  general  prisoners  other  than  residents  of  Porto  Rico, 
the  Canal  Zone.  Hawaiian  Islands,  or  the  Philippine  Islands  who  are 
to  be  confined  for  six  months  or  more  and  who  arc  not  to  be  con- 
fined in  a  penitentiary  pursuant  to  the  preceding  paragraph.  From 
time  to  time  detailed  instructions  will  be  issued  as  to  which  of  the 


190  MANUAL  FOR  COURTS-MARTIAL. 

hall  be  designated  and  as  to  when  the  prisoners  shall  tw 
:  to  them. 

398.  When  confinement  in  post  will  be  directed. — A  military  post, 
m,  or  camp  will  be  designate  of  confinement  of 

any  general  prisoner  whose  case  does  not  come  within  the  terms  of 
paragraphs  396  and  897  of  this  section. 

399.  Cooperation  of  reviewing  authorities. — The  successful  segrega- 
tion of  genera]  prisoners  according  to  the  grade  of  their  offense  as 

ribed  by  the  three  preceding  paragraphs  must  depend  to  a  con- 
ible  extent  upon  the  cooperation  of  officers  exercising  general 
court-martial  jurisdiction.    The  demand  for  prison  Labor  at  posts  is 
not  deemed  a  sufficient  reason  for  a  departure  from  the  rule  of  segre- 
gation prescribed. 

400.  Court-martial  orders. — Trials  by  general  courts-martial,  in- 
cluding so  much  of  the  proceedings  as  will  givi  and 
specifications,  the  pleas,  findings,  and  sentence,  and  the  action  and 
remarks  of  the  reviewing  authority,  will  be  announced  in  general 
court-martial  order-  issued  from  the  War  Department  or  from  other 
headquarters  exercising  general  court-martial  jurisdiction.  If  ilie 
charges  contain  matter  which  for  any  reason  is  unfit  for  publica- 
tion, such  matter  will  be  omitted  from  the  order,  but  a  copy  thereof 
will  be  promptly  furnished  by  the  reviewing  authority  to  the  com- 
manding officer  of  the  post  at  which  the  officer  or  soldier  is  confined, 
to  be  included  with  the  paper-  required  to  be  sent  to  the  commanding 

!■  of  the  post  or  other  places  of  confinemenl  where  the  sente 
ilinenient  is  to  be  executed.    Trials  by  special  courts-martial  will 
also  be  published  in  orders  similar  in  form  to  general  court-martial 
orders.     (  For  form-,  see  Appendix  11.)      (C.  M.  C.  M ..  No.  3.) 

Section  II. 
ACTION   AFTER   PROMULGATION   OF   SENTENCE. 

401.  Date  of  beginning  of  sentence. — The  order  promulgating  the 
proceedings  of  a  court  and  the  action  of  the  reviewing  authorit}7  will, 
when  practicable,  be  of  the  same  date.  When  this  is  not  practicable, 
the  order  will  give  the  date  of  the  action  of  the  reviewing  authority, 
which  date  will  be  the  beginning  of  a  sentence  of  confinement,  as 
well  where  dishonorable  discharge  is  imposed  as  where  it  is  not.  A 
sentence  of  confinement  is  continuous  until  the  term  expires,,  except 
where  the  prisoner  is  absent  without  authority  or  under  a  parole 
which  proper  authority  revofo  I  livered  to  the  civil  authorities 
under  A.  W.  74.     It  is  appropriate  for  the  appointing  authority  to 

at  the  time  of  approval,  confinement  served  by  an  accused 
prior  thereto,  and  in  a  proper  ease  make  it  the  basis  of  mitigation 
of  the  sentence. 


COURTS-MARTIAL APPOINTING   OR  SUPERIOR  AUTHORITY.       191 

When  soldiers  awaiting  the  result  of  trial  or  undergoing  sentence 
commit  offenses  for  which  they  are  tried,  the  second  sentence  will 
be  executed  upon  the  expiration  of  the  first,  except  that  when  the 
first  sentence  involves  hard  labor  without  confinement,  and  the  second 
sentence  hard  labor  with  confinement,  the  second  sentence  will  take 
precedence.  If  a  soldier,  while  awaiting  the  result  of  a  trial  that 
terminates  in  a  sentence  of  confinement  without  dishonorable  dis- 
charge, or  while  undergoing  a  sentence  of  confinement  without  dis- 
honorable discharge,  is  tried  for  a  further  offense  and  sentenced  to 
confinement  without  dishonorable  discharge,  the  period  of  confine- 
ment imposed  by  the  second  sentence  will  be  executed  upon  the  ex- 
piration of  the  period  of  confinement  imposed  by  the  first;  but -if 
the  second  sentence  imposes  confinement  with  dishonorable  disc  L. 
the  period  of  confinement  on  the  first  sentence  will  terminate  upon 
the  date  of  the  approval  of  the  second  sentence,  leaving  to  be  ex- 
alted only  the  confinement  imposed  by  the  second  sentence.  {('.  .'/. 
C.  31..  No.  1.) 

402.  Applications  for  clemency. — The  power  to  remit  or  mitigate 
punishment  imposed  by  a  court-martial,  vested  in  the  authority  who 
appointed  the  court  or  the  corresponding  authority  under  whose 
jurisdiction  the  sentence  is  being  executed,  extends  onl}'  to  unexecuted 
portions  of  a  sentence.  If  the  punisliment  be  one  imposed  by  a 
era!  court-martial,  it  may  be  remitted  or  mitigated  only  by  an  oiiicer 
competent  to  order  a  general  court-martial  and  under  whose  jurisdic- 
tion the  sentence  is  being  executed.  The  fact  that  a  soldier  has  been  dis- 
honorably discharged  through  his  sentence  does  not  affect  this  power,, 
An  application  for  clemency  in  case  of  a  prisoner  sentenced  to  con- 
finement in  a  penitentiary  or  in  the  United  States  Disciplinary  Bar- 
racks or  any  branch  thereof  will  be  forwarded  to  The  Adjutant 
General  of  the  Army  for  the  action  of  the  Secretary  of  War  and 
the  President.  A  military  prisoner  sentenced  to  confinement  in  a 
penitentiary  or  in  the  United  States  Disciplinary  Barracks  or  any 
branch  thereof  will,  so  far  as  concerns  the  exercise  of  clemency,  be 
considered  to  have  passed  beyond  the  jurisdiction  of  the  department 
or  otKer  commander  from  the  date  of  the  approval  of  his  sentence. 
The  power  to  commute  sentences  imposed  by  military  tribunals,  not 
being  vested  in  military  commanders,  can  be  exercised  by  the  Presi- 
dent only. 

403.  Remission  of  suspended  sentence  of  dishonorable  discharge. — lie* 
quests  to  remit  the  dishonorable  discharge  under  a  suspended  sen 
tence  of  dishonorable  discharge  are  requests  for  clemency,  and  will 

le  to  the  authority  empowered  to  extend  clem 

404.  Clemency  applications  limited  to  one  in  six  months. — It  appea 
that  the  expenditure  of  much  unnecessary  time  and  labor  is  ;::--  • 

in  the  reexamination  in  i\^-  War  Department  upon  further  applica- 


192  MANUAL   FOR   COURTS-MARTIAL. 

for  clemency  of  caa  s  relating  to  military  prisoners  which  have 
ived  recent  and  thorough  consideration  m  connection  with  prior 
applications,  the  Secretary  of  War  has  directed  that  where  such 
further  application  is  received  at  the  War  Department  within  six 
months  of  Buch  prior  consideration  the  case  will  not  be  reexamined 
unless  there  be  set  forth  in  the  application  new  and  material  reasons 
for  the  granting  of  clemency,  but  that  the  applicant  will  be  advised 
of  the  recent  consideration  and  of  the  action  had  thereon. 


CHAPTER  XVII. 
PUNITIVE  ARTICLES. 

I:  Enlistment:  Muster:  Returns:  Page. 

405.  Fifty-fourth    article 106 

I.  Fraudulent  enlistment 107 

40G.  Fifty-fifth  article 107 

I.  Unlawful  enlistment  or  muster  in 108 

407.  Fifty-sixth  article 108 

I.  Making  false  muster 100 

II.  Signing,  etc.,  false  muster  rolls 199 

III.  Taking  money,  etc.,  on  muster  or  signing  muster  rolls 100 

IV.  Mustering  as  an  officer  or  soldier  one  who  is  not 109 

408.  Fifty-seventh  article 200 

I.  Making  false  returns 200 

II.  Omitting  to  render  returns 200 

Section  IT:  Desertion:  Absence  loithout  leave: 

400.  Fifty-eighth  article 201 

I.  Desertion 202 

II.  Attempting  to  desert 202 

410.  Fifty-ninth  article 202 

I.  Advising  desertion 203 

II.  Persuading  desertion 203 

III.  Assisting  desertion 203 

411.  Sixtieth  article 204 

I.  Retaining  a  deserter 204 

412.  Sixty-first  article 204 

I.  Absence  without  leave 205 

Section  III:  Disrespect:  Insubordination:  Mutiny: 

413.  Sixty-second  article 206 

I.  Disrespect  toward  the  President,  etc ^ 207 

414.  Sixty-third  article 207 

I.  Disrespect  toward  superior  officer 208 

415.  Sixty-fourth  article 208 

I.  Assaulting  superior  officer 200 

II.  Disobeying  superior  officer 200 

416.  Sixty-fifth  article 211 

I.  Assaulting  a  noncommissioned  officer 212 

II.  Disobeying  a  noncommissioned  officer 212 

III.  Using  threatening  or  Insulting  language  or  behaving  in  an 

insubordinate    or    disrespectful    manner    toward    a    non- 
commissioned officer 212 

417.  Sixty-sixth  article 213 

I.  Attempting  to  create  a  mutiny  (or  sedition) 213 

II.  Beginning  a  mutiny   (or  sedition) 214 

53915°— 18 11  193 


194  MANUAL  FOE  COURTS-MARTIAL. 

Section  Hi:  Dim  ipect:  Insubordination:  Mutiny— Continued, 

417.  sixty-sixth  article    Continued.  Pag". 

III.  Joining  in  n  mutiny  (or  sedition) 214*. 

i\.  Exciting  a  mutiny  (or  sedition) 21-a 

v.  Causing  a  mutiny  (or  sedition) 214 

41S.  Sixty-seventh  article 215 

l    i       are                      mutiny  (or  sedition) 215 

11.  Fafiure  to  give  information  of  mutiny  (or  sedition) 216 

419.  Sixty-eighth  article 216 

i  iv.  Refusing  to  obey  or  assaulting,  ete.,  officer  or  non- 
commissioned officer  who  is  attempting  to  suppress 

a  quarrel,  fray,  or  disorder 217 

Section  IV:  Ancst:  Confinement: 

420.  Sixty-ninth  article 218 

I.  Breach  of  arrest 218 

II.  Escape    horn   confinement 219 

421.  Seventy-lirst    article 219 

I.  Kef  using  to  receive  or  keep  prisoners 220 

•ILiL!.  Seventy-second  article 220 

I.  Failure  to  render  report  as  prescribed 220 

423.  Seventy-third  article 

1.  Releasing  prisoner  without  proper  authority 222 

II.  Suffering  prisoner  to  escape  through  neglect ^l'l' 

III.  Suffering  prisoner  to  escape  through  design i!u:; 

42 1.  Seventy-fourth  article 

I.  Refusing  to  deliver  accused  persons 'S-l~> 

II.  Refusing  to  aid  in  apprehend ing  accused  persons '--i~> 

Section  V:  War  offenses: 

425.  Seventy-fifth  article 225 

I.  Misbehavior  before  the  enemy 

II.  Running  away  before  the  enemy 226 

III.  Shamefully  abandoning  or  delivering  up  any  command-  --& 

IV.  Speaking  words  inducing  these  acts i2_'7 

A".  Casting  away  arms  or  ammunition 228 

VI.  Quitting  post  or  colors  to  plunder  or  pillage 22£ 

VII.  Occasioning  false  alarms 228 

42G.  Seventy-sixth  article 229 

I.    Subordinates   compelling  connn. 

427.  Seventy-seventh  article 22fl 

I.  Making  known  parole  or  countersign 23( 

II.  Giving  different  parole  or  countersign  23( 

428.  Seventy-eighth  article 230 

I.  Forcing  a  safeguard 231 

Seventy-ninth   article 231 

I.  Neglecting  t<>  secure  captured  public  property 232 

II.  Wrongful  appropriation  of  captured  public  property 

430.  Eightieth   article 

I.  Dealing  in  captured  or  abandoned  property 

II.  Failure  or  delay  in  reporting  receipt  of  cap!  ured  or  aban- 
doned property 


PUNITIVE   ARTICLES.  195 

Section  V:  War  offenses— Continued.  Page, 

431.  Eighty-first  article 234 

I.  Relieving  the  enemy 234 

II.  Harboring  or  protecting  the  enemy 234 

III.  Holding  correspondence  with  the  enemy 235 

IV.  Giving  intelligence  to  the  enemy 235 

432.  Eighty-second   article 236 

I.  Being  a  spy 23G 

Section   VI:   Miscellaneous   crimes   and   offenses: 

Eighty-third  article 237 

I.  Suffering  military  property  to  be  lost,  etc 238 

434.  Eighty-fourth    article 238 

I.  Selling  or  wrongfully  disposing  of  military  property.  239 
II.  Willfully  or  through  neglect  injuring  or  losing  mili- 


tary property. 


239 


435.  Eighty-fifth   article 239 

I.  Being  found  drunk  on  duty 241 

436.  Eighty-sixth  article 242 

I.  Being  found  drunk  on  post 242 

II.  Being  found  sleeping  on  post 242 

III.  Leaving  post  before  being  relieved 242 

437.  Eighty-seventh   article 243 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in  of 

victuals,  etc 243 

II.  Being  interested  in  the  sale  of  victuals,  etc 243 

438.  Eighty-eighth    article 241 

I.  Intimidating,  etc.,  persons  bringing  necessaries 245 

439.  Eighty-ninth    article 245 

I.  Committing  waste  or  spoil 245 

II.  Willfully  destroying  property —  246 

III.  Committing  depredation  or  riot 246 

IV.  Refusing  or  omitting  to  see  reparation  made 246 

440.  Nineteenth  article 24€ 

I.  Using  provoking  speeches  or  gestures 247 

441.  Ninety-first  article 247 

I.  Fighting  or  promoting  a  duel 24S 

II.  Being  concerned  in  or  conniving  at  fighting  a  dm  i-_  24S 

III.  Failing  to  report  knowledge  of  a  challenge 248 

442.  Ninety-second   article 248 

I.  Murder    249 

II.  Rape 

413.  Ninety-third  article 252 

I.  Manslaughter 25S 

II.  Mayhem 254 

III.  Arson 

IV.  Burglary 25! 

V.  Larceny 25^ 

VI.  Robbery 265 

VII.  Embezzlement 264 

VIII.  Perjury 264 

IX.  Assault  witli  intent  to  commit  any  felony 206 

1.  Assault  with   intent  to  murder 268 

2.  Assault  with  Intent  to  commit  manslaughter.-  269 

3.  Assault  with  intent  to  commit  rape 270 


iy6  MANUAL  FOR   COUBTS-MABTIAL. 

71:  Miscellam  <tmi  offenses  -Continu  Page. 

Ninety-third  article — Continued. 

IX.  Assaall  with  inteut  to  commit  any  felony — Continued. 

•J.  Assault  with  intent  t<»  rob 270 

ssnull  with  Intent  <<•  commit  sodomy  -  -71 

X.  Assaull    with  intent  to  do  bodily  harm 272 

444.  Ninety-fourth   article 272 

I.  Making  or  causing  to  he  made  a  false  or  fraudulent 

claim   274 

II.  Presenting  or  causing  to  be  presented  fur  approval  or 

payment  a  false  or  fraudulent  claim 275 

III.  Entering  Into  an  agreement  or  conspiracy  to  defraud 

the  United  Stales  through  false  claims 275 

IV.  Making,  using,  procuring,  or  adi  i  iking  or 

Of  a  false  writing  or  other  paper  in  connection 

with   claims 278 

V.  False  oath  in  connection  with  claims 277 

VI.  Forgery,  etc.,  of  signature  in  connection  with  <i.iiins_  277 

VII.  Delivering  less  than  amount  called  for  by  receipt 277 

VIII.  Making  or  delivering  receipt  without   having  knowl- 

t  hat  the  same  is  true 278 

IX.  Embezzlement,  misappropriation,  sale,  etc.,  of  military 

property 278 

X.  Turchasiug  or  receiving  in  pledge  of  military  property.  2S0 

445.  Xinety-flfth  article 280 

I.  Conduct  unbecoming  an  officer  and  gentleman 2S1 

446.  Xinety-sixth  article 281 

I.  Disorders  and  neglects  to  the  prejudice  of  good  order 

and  military  discipline 282 

II.  Conduct  of  a  nature  to  bring  discredit  upon  the  mili- 
tary service 283 

III.  Crimes  or  offenses  not  capital 283 


Section  I. 
ENLISTMENT— MUSTER— RETURNS. 

FIFTY-FOURTH  ARTICLE. 

405.  Any  person  who  shall  procure  himself  to  he  eulisted  in  the  military  serv- 
Dnlted  States  by  means  of  willful  misrepresentation  or  concealment  as 
to  his  qualifications  for  enlistment,   and  shall   receive  pay  or  allowances  under 
BUCh  enlistment,  shall  he  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  fraudulent  enlistment  is  an  enlistment  procured  by  means  of  a 
willful  misrepresentation  in  regard  to  :i  qualification  or  disqualifica- 
tion for  enlistment,  or  by  intentional  concealment  of  a  disqualifica- 
fcion  \\  lii'h  has  had  the  effed  of  causing  (he  enlistment  of  a  man  not 
qualified  to  he  a  soldier  ami  who  hut  for  such  false  representation  or 
concealment  would  have  been  rejected. 


PUXITIVK    ARTICLES.  197 

Willful  means  intentional,  thus  excluding  cases  of  mistake  or  for- 
getfulness. 

Misrepresentation  and  concealment  include  any  act,  statement,  or 
omission,  however  made,  which  has  the  effect  of  conveying  an  untruth 
or  concealing  the  truth  concerning  the  applicant's  qualifications  or 
disqualifications  for  enlistment. 

The  misrepresentation  or  concealment  may  be  in  matters  which  are 
designed  to  open  the  door  to  inquiry  concerning  the  qualifications  or 
disqualifications  for  enlistment,  such  as  questions  as  to  previous 
service,  previous  applications  for  enlistment,  etc. 

The  qualifications  or  disqualifications  may  be  prescribed  by  law, 
regulations,  or  orders. 

Answers  to  questions  having  no  bearing  on  the  applicant's  quali- 
fications for  enlistment,  such  as  questions  as  to  applicant's  name, 
address,  or  immaterial  statements  as  to  age,  are  not  sufficient. 

Analysis  and  Proof. 

The  article  applies  only  to  enlisted  men. 

The  article  defines  one  offense,  i.  e.,  fraudulent  enlistment. 

I.    FRAUDULENT  ENLISTMENT. 


(a)  The  enlistment  of  the  accused  in  the  military  service  as  alleged. 

(b)  That  the  accused  willfully  misrepresented  a  certain  fact  or 
facts  regarding  his  qualifications  or  disqualifications  for  enlistment, 
or  willfully — that  is,  intentionally — concealed  a  disqualification,  as 
alleged. 

(c)  That  enlistment  was  procured  by  such  misrepresentation  or 
concealment. 

(d)  That  under  such  enlistment  the  accused  received  either  pay 
or  allowances,  or  both,  as  alleged. 

(e)  Where  a  soldier  enlists  without  a  discharge  (see  twenty-ninth 
article),  the  proof  should  include  the  fact  that  at  the  time  of  the 
alleged  enlistment  the  accused  was  a  soldier,  and  that  the  enlistment 
was  entered  into  without  a  regular  discharge  from  the  former  enlist- 
ment. 

FIFTY-FIFTH  ARTICLE. 

406.  Any  officer  who  knowlingly  enlists  or  musters  into  the  military  service 
any  person  whose  enlistment  or  muster  in  is  prohibited  by  law,  regulations,  or 
orders  shall  be  dismissed  from  the  service  or  suffer  such  other  punishment  as  a 
court-martial  may  direct. 


198  :.1.\mal  for  courts  martial. 

Definitions  and  Principles. 

the  terms  of  the  article. 

The  prohibited  enlistment  must  be  knowingly  made.  i.  e..  it  must  b$ 
shown  that  i!i"  accused  km  w  that  the  person  enlisted  or  mustered  in 
by  him  was  within  the  prohibited  class. 

Knowingly  includes  not  only  a  certainty  of  belief  but  also  such  a 
degree  of  belief  as  the  ordinarily  prudent  man  acts  upon. 

The  enlistment  or  muster  in  of  the  person  must  be  at  the  time  pro- 
hibited by  law  or  by  regulations  or  orders  that  were  operative  as  to 
tin'  accused. 

This  excludes  cases  where  the  enlistment  or  muster  in  was  pro 
hibited  by  regulations  or  orders  of  the  existence  of  which  the  a<  cused 
•was  not  aware  or  at  the  time  chargeable  with  knowledge. 

Analysis  and  Proof. 

The  article  applies  only  to  officers. 

The  article  defines  two  offenses  which  may  be  treated  under  one 

heading  as  follows: 

I.  UNLAWFUL  ENLISTMENT  (OR  MUSTER  IN  ). 


(a)  The  enlistment  or  muster  in  by  the  accused  officer  of  the  per- 
son named,  as  alleged. 

(b)  That  such  person  was  within  the  classes  whose  enlistment  or 
muster  in  were  prohibited  at  the  time  of  such  enlistment  or  muster  in. 

(c)  That  the  accused  knew  this  at  the  time  of  the  enlistment  cr 
muster  in  of  such  person. 

FIFTY-SIXTH  ARTICLE. 

407.  *     *     *    Any  officer  who  knowingly  makes  n  false  muster  of  in. 
animal,  or  who  signs  or  directs  or  allows  the  signing  of  any  muster  roll  kno 
the  same  to  contain  a  false  muster  or  false  statement  as  to  the  absence  or  pi 
nn  officer  or  soldier,  or  who  wrongfully  takes  money   or  other   consideration 
on  mustering  In  a   regiment,  company,  or  other  organization,  or  on  s 
muster  rolls,  or  who  knowingly  musters  as  an  officer  or  soldier  a  person  who 

soldier,  shall  be  dismissed  from  the  service  and  b 
such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article  for  requirements  as  to  muster  rolls  ai 
definition  < 

Muster  has  been  defined  as  the  assembling,  inspecting,  enterii  § 
upon  the  forma]  rolls,  and  officially  reporting  as  a  component  part  • 
the  command  of  persons  or  public  animals.     (Winthrop.  p.  852.) 


PUNITIVE   ARTICLES.  199 

Analysis  and  Proof. 

The  article  applies  only  to  officers. 

The  article  defines  a  number  of  offenses  which  may  be  treated 
under  the  following  heads: 

I.  Making  false  muster. 

II.  Signing,  directing,  or  allowing  the  signing  of  false  muster  rolls. 

III.  Taking  money  or  other  consideration  on  muster  or  signing 
muster  rolls. 

IY.  Mustering  as  an  officer  or  soldier  one  who  is  not. 

I.   MAKING   FALSE   MUSTER. 


(a)  That  the  muster  of  a  certain  man  or  animal  was  made  by  the 
accused  officer,  as  alleged. 

(!>)   That  the  muster  was  false  as  alleged. 

(c)  That  the  accused  officer  knew  this  at  the  time  of  making  the 
muster. 

II.    SIGNING,    DIRECTING,    OR   ALLOWING    THE    SIGNING    OF    FALSE    MUSTER 

ROLLS. 


(a)  That  the  accused  officer  signed  the  muster  roll  or  directed  or 
allowed  the  signing  of  the  muster  roll  as  alleged. 

(b)  That  such  muster  roll  was  false  in  certain  particulars  as  alleged, 

(c)  That  the  accused  officer  knew  this  at  the  time  he  signed  the 
roll  or  directed  or  allowed  it  to  be  signed  as  alleged. 

III.    TAKING    MONET   OR   OTHER    CONSIDERATION    ON    MUSTER   OR   SIGNING 

MUSTER  ROLLS. 

PROOF. 

(a)  That  the  accused  officer  made  the  muster  of  the  organization 
or  signed  the  muster  rolls  as  alleged. 

(b)  That  he  accepted  money  or  other  consideration  as  a  compensa- 
tion or  reward  for  making  the  muster  or  signing  the  muster  rolls. 

(c)  That  the  taking  of  such  money  or  other  consideration  was 
wrongful — that  is,  without  legal  excuse. 

IV.   MUSTERING  AS  AN    OFFICER  OR  SOLDIER  ONE  WHO   IS   NOT. 

rnooF. 

(a)   That  the  accused  officer  mustered  as  an  officer  or  soldier  a 
certain  person,  as  alleged. 


200  MANUAL  FOR   COURTS-MARTIAL. 

(b)  Thai  the  person  so  mustered  was  not  such  officer  or  soldier. 
(   )   That  the  accused  knew  this  when  he  made  the  muster. 

FIFTY-Sr.YI.NTII   ARTICLE. 

408.  Every  officer  commanding  i  an  Independent  troop,  battery,  or 

company,   or   a   garrison    shall,    in   the   beginning   of   every    n th,    transmit 

through  the  proper  channels,  to  the  Departmeni  of  War,  an  exact  return  of 
the  same.  Every  officer  whose  duty  it  is  to  render  to  the  War  Department  or 
other  superior  authority  a  return  of  the  state  of  the  troops  under  his  com- 
mand, or  of  the  arms,  ammunition,  clothing,  funds,  or  other  property  thereunto 
who  knowingly  mi  e  return  thereof  si  tissed  from 

the  service  and  suffer  such  other  punishment   as  a  court-martial  may  direct. 
And  any  officer  who.  through  neglect   or  design,  omits  to  render  such  return 
shall  be  punished  as  j(  court-martial  may  direct.     ("See  Ch.  X.  Army  appro- 
1918:  Public  No.  193,  65th  C<  < 

Definitions  and  Principles. 

See  the  terms  of  the  article,  the  penal  part  of  which  applies  broadly 
to  "every  officer  whose  duty  it  is  to  render  to  the  War  Department 
or  other  superior  authority  a  return  of  the  state  of  the  troops  under 
his  command,  or  of  the  arms,  ammunition,  clothing,  funds,  or  other 
property  thereunto  belonging." 

Analysis  and  Proof. 

The  article  applies  to  commanding  officers  only. 
The  article  defines  two  offenses : 

I.  Making  false  returns. 

II.  Omitting  to  render  returns. 

I.  MAKING   FALSE  RETURNS. 

As  to  knowingly,  see  remarks  under  fifty-fifth  article. 

PBOOF. 

(a)  That  the  accused  officer  was  a  commanding  officer,  as  alleged. 

(b)  That  it  became  his  duty  as  such  to  render  to  a  certain  superior 
authority  a  certain  return  as  specified. 

(c)  That  he  complied  with  such  duty,  and  that  the  return  so  made 
was  false  in  certain  particulars,  as  alleged. 

(d)  That  the  accused  officer  knew  that  the  return  was  false  at  the 
time  of  making  it. 

II.   OMITTING  TO  BENDER   RETURNS. 

The  term  "neglect"  involves  the  idea  of  culpability  and  includes 
,.-  ease  of  an  officer  who,  knowing  the  return  to  be  due,  fails  to 
render  it  through  remissness  or  procrastination. 


PUNITIVE   ARTICLES.  201 


(a)  That  the  accused  officer  was  a  commanding  officer  as  alleged. 

(b)  That  it  became  his  duty  as  such  to  render  to  a  certain  superior 
authority  a  certain  return  as  specified. 

(r)  That  he  omitted  through  neglect  or  design  to  render  such 
.     (C.  M.  0.  J/..  No.  40 

Section  II. 
DESERTION— ABSENCE  WITHOUT  LEAVE. 

FIFTY-EIGHTH   ARTICLE. 

409.  Any  person  subject  to  military  law  who  deserts  or  attempts  to  desert  the 
service  of  the  United  States  shall,  if  the  offense  be  committed  in  time  of  war, 
suffer  death  or  such  other  punishment  as  a  court-martial  may  direct,  and,  if 
the  offense  be  committed  at  any  other  time,  any  punishment,  excepting  death, 
that  a  court-martial  may  direct. 

Definitions  and  Principles. 

Desertion  is  absence  without  leave  accompanied  by  the  intention 
not  to  return. 

Both  elements  are  essential  to  the  offense.  The  offense  becomes 
complete  when  the  person  absents  himself  without  authority  from 
his  place  of  service  with  intent  not  co  return  thereto.  A  prompt 
repentance  and  return  are  no  defense,  nor  is  it  a  defense  that  the 
deserter  at  the  time  of  departure  intended  to  report  for  duty  else- 
where. Thus,  where  a  soldier  leaves  his  post  intending  never  to 
go  back  unless  a  certain  event  happe7is,  or  leaves  his  post  with  such 
intent  and  reports  at  another  post,  he  is  a  deserter;  but  unless  such 
intent  exists  at  some  time  the  soldier  can  not  be  a  deserter  whether 
his  purpose  is  to  stay  away  a  definite  or  indefinite  length  of  time. 
Where  a  soldier,  without  having  been  discharged,  again  enlists  in 
the  Army  or  in  the  Militia  in  the  service  of  the  United  States,  such 
enlistment  is,  by  the  twenty-ninth. article,  made  sufficient  evidence 
of  desertion.  In  such  a  case,  proof  of  the  intent  permanently  to 
stay  away  from  his  former  place  of  service  and  of  the  status  of 
absence  without  leave  therefrom  are  unnecessary. 

Analysis  and  Proof. 

The   article   includes   all   persons  subject  to   military   law.     See 
Article  2. 
The  article  defines  two  offenses,  as  follows: 

I.  Desertion. 

II.  Attempting  to  desert. 


202  MANUAL   FOR  COURTS- MARTIAL. 

I.    DESERTION. 


(a)  That  the  accused  absented  himself,  or  remained  absent  with- 
out authority,  from  his  place  of  service,  as  alleged. 

(b)  That  he  intended,  at  the  time  of  absenting  himself  or  at  some 
time  during  his  absence,  to  remain  away  permanently  from  Mich 
place. 

I  ■•)  That  his  absence  was  of  a  duration  and  was  terminated  as 
alleged. 

(d)  That  his  act  was  done,  if  so  alleged,  in  the  execution  of  a 
certain  conspiracy,  or  in  the  presence  of  a  certain  outbreak  of 
Indians,  or  of  a  certain  unlawful  assemblage  which  his  organization 
was  opposing,  or  in  time  of  war  where  the  court  will  not  take  judi- 
cial notice  of  the  existence  of  a  status  of  war. 

(r  (e)  Where  the  soldier  enlisted  without  a  discharge  (see  twenty- 
ninth  article),  that  the  accused  was  a  soldier  in  a  certain  organiza- 
tion of  the  Army  as  alleged;  and  that,  without  being  discharged  from 
such  organization,  he  again  enlisted  in  the  Army,  Navy.  Marine 
Corps,  or  some  foreign  army  as  alleged.  In  this  case  proof  of  the 
absence  without;  leave  and  of  the  intention  not  to  return  become 
unnecessary. 

II.    ATTEMPTING  TO  DESERT. 

An  attempt  to  desert  is  an  overt  act  other  than  mere  preparation 
toward  accomplishing  a  purpose  to  desert. 

Usually  the  endeavor  of  the  accused  toward  getting  away  will  be 
frustrated  by  an  agency  independent  of  his  own  will ;  but  once  the 
attempt  is  made  a  turning  back  by  the  accused  of  his  own  accord 
does  not  obliterate  the  offense.  An  instance  of  the  offense  is:  A 
soldier  intending  to  desert  hides  himself  in  an  empty  freight  car  on 
the  post,  intending  to  effect  his  escape  from  the  post  by  being  taken 
out  in  the  car. 

PROOF. 

(a)  That  the  accused  made  the  attempt  by  doing  the  overt  act  or 
acts  alleged. 

(b)  That  he  intended  to  desert  at  the  time  of  doing  such  act  or  acts. 

(c)  That  his  act  was  done,  if  so  allegi  d,  in  the  execution  of  a  cer- 
tain conspiracy,  or  in  the  presence  of  a  certain  outbreak  of  Indians, 
or  a  certain  unlawful  assemblage  which  his  organization  was  oppos- 
ing, or  in  time  of  war  where  the  court  will  not  take  judicial  notice 
of  the  existence  of  the  status  specified. 

FIFTY-NINTH  ARTICLE. 

410.  Any  person  Bubjed  to  military  law  who  advises  or  persuades  or  know- 
ingly assists  another  to  desert  the  service  of  the  United  .states  Bhall,  if  thfc 


PUNITIVE   ARTICLES-  203 

offense  be  committed  in  time  of  war.  Buffer  death,  <>r  such  other  punishment  as 
a  court-martial  may  direct,  and,  If  the  offense  be  committed  at  any  other  time, 
any  punishment,  excepting  death,  that  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  definition  of  desertion  under  the  next  preceding  article. 

As  to  knowingly,  see  remarks  under  the  fifty-fifth  article. 

The  offenses  of  persuading  and  assisting  desertion  are  not  com- 
plete unless  the  desertion  occurs;  but  the  offense  of  advising  is  com- 
plete when  the  advice  is  given,  whether  the  person  advised  deserts 
or  not. 

It  is  not  necessary  that  the  accused  act  alone  in  giving  the  advice 
or  assistance,  or  in  the  persuasion;  and  he  may  act  through  other 
persons  in  committing  the  offenses. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
article  2. 

The  article  defines  three  offenses,  as  follows: 

I.  Advising  desertion. 

II.  Persuading  desertion. 

III.  Assisting  desertion. 

i.  advising  desertion. 


(a)  That  the  accused  advised  a  person  subject  to  military  law  to 
desert  the  service  as  alleged. 

(b)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

II.  persuading  desertion. 


(a)  That  the  accused  used  persuasion  to  induce  a  person  subject 
to  military  law  to  desert  the  service  as  alleged. 

(0)  That  the  person  whom  he  persuaded  deserted  as  alleged,  and 
was  induced  to  do  so  by  such  persuasion.     See  proof  of  desc 
in  the  next  preceding  article,  items  (a)  and  (b). 

(c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

III.  ASSISTING  DESERTION. 


(a)  That  the  accused  knowingly  assisted  a  person  subject  to  mil- 
itary law  to  desert  the  service  as  alleged. 


204  MANUAL   FOR   COUNTS-MARTIAL. 

(I)  That  the  person  given  such  assistance  deserted  as  alleged. 
See  proof  of  desertion  in  the  next  preceding  article,  items  (a)  and 

(5). 

(c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war,  where 
the  court  will  not  take  judicial  notice  of  the  status  of  war. 

SIXTIETH    ARTICLE. 

411.  Any  officer  who,  after  having  discovered  that  a  soldier  in  his  command  is 

a  deserter  from  the  military  or  naval  service  or  from  the  Marine  Corps,  retains 

such  deserter  In  his  command  without  Informing  superior  authority  or  the  com- 

the  organization  to  which  the  deserter  belongs  shall  be  punished  as 

a  court -martial  may  direct. 

Definitions  and  Principles. 

definition  of  desertion  under  article  58. 
Discovered  does  not  imply  a  certainty  on  the  one  hand  or  a  mere 
suspicion  on  the  other.     It  implies  such  a  belief  as  the  ordinarily 
prudent  officer  would  act  upon. 

Analysis  and  Proof. 

The  article  applies  only  to  commanding  officers. 
The  article  defines  one  offense: 

I.  RETAINING   A   DESERTER. 


(a)  That  the  accused  officer  exercised  a  certain  command  as  al- 
leged. 

(b)  That  while  so  in  command  he  discovered  that  a  certain  soldier 
in  his  command  was  a  deserter  from  the  military  or  naval  service,  or 
from  the  Marine  Corps,  as  alleged. 

(c)  That  such  soldier  was  in  fact  such  a  deserter.  See  proof  of 
desertion  under  fifty-eighth  article,  items  (a)  and  (b). 

(-/)  That  he  retained  such  deserter  in  his  command  without  in- 
forming superior  authority  or  the  commanding  officer  of  the  organi- 
zation to  which  the  deserter  belongs,  as  alleged. 

SIXTY-FIRST  ARTICLE. 

412.  Any  person  subject  to  military  law  who  Calls  to  repair  at  the  fixed  time  to 
the  properly  appointed  place  of  duty,  or  goes  from  the  same  without  proper 
leave,  or  absents  himself  from  his  command,  guard,  quarters,  station,  or  camp 
without  proper  leave,  Shall  be  punished  as  a  court-martial  may  direct. 


PUNITIVE    ARTICLES.  205 

DEFINITION';    AND   PrINCEPIJ    I. 

The  article  is  designed  to  cover  every  case  not  elsewhere  provided 
for  where  any  person  subject  to  military  law  is  through  his  own  fault 
not  at  the  place  where  he  is  required  to  be  at  a  time  when  he  should 
be  there. 

The  first  part  of  the  article — that  relating  to  properly  appointed 
place  of  duty— applies  whether  such  place  is  appointed  as  a  rendez- 
vous for  several  or  for  one  only.  Thus,  it  would  apply  in  the  case 
of  a  soldier  failing  to  report  as  the  kitchen  police  or  leaving  such 
duty  after  reporting. 

A  soldier  turned  over  to  the  civil  authorities  upon  application  is 
not  punishable  under  this  article  for  the  period  he  is  held  by  them 
under  such  delivery.  So,  also,  where  a  soldier  is  absent  with  leave 
and  is  hold,  tried,  and  acquitted  by  the  civil  authorities,  his  status 
d<  es  not  change  to  absence  without  leave.  But  where  the  soldier  is 
absent  without  leave  when  tried,  although  acquitted,  or  being  absent 
with  leave  is  convicted  and  held  beyond  the  expiration  of  his  pass, 
or  being  absent  without  leave  is  unable  to  return  through  sickness  or 
lack  of  transportation  facilities,  or  other  disabilities,  the  period  of 
the  absence  without  leave  will  include  the  time  he  is  so  detained;  but, 
in  view  of  the  fact  that  the  absence  during  such  time  is  enforced,  it 
would  be  appropriate  not  to  consider  the  length  of  such  detention  for 
the  purpose  of  administering  punishment  in  the  case. 

In  computing  the  length  in  days  of  a  period  of  absence  for  the 
purpose  of  determining  the  maximum  punishment  for  an  absence 
without  leave  under  this  article  periods  of  24  hours  are  considered 
one  day.  Thus,  a  soldier  who  absents  himself  from  11.59  p.  m.  one 
day  id  1-2.01  a.  m.  the  next  is  absent  only  a  fraction  of  a  day  as  far 
as  the  maximum  punishment  order  is  concerned,  although  the  period 
of  absence  cover  parts  of  two  calendar  days. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
Articli 

The  article  defines  a  number  of  offenses  which  may  be  treated 
under  the  general  term  "Absence  without  leave." 

I.    ABSENCE  WITHOUT  LEAVE. 
PROOF. 

(1)  Where  the  accused  fails  to  appear  at  or  goes  from  a  place  of 
duty. 

(a)  That  a  certain  authority  appointed  a  certain  time  and  place 
for  a  certain  duty  by  the  accused,  as  alleged. 


206  MANUAL  FOR   COURTS-MARTIAL. 

(b)  That  he  failed  to  report  to  such  place  at  the  proper  time,  or 
having  so  reported  went  from  the  same  without  authority  from  any- 
one competent  to  give  him  leave  to  do  bo. 

(2)  Where  the  accused  is  charged  with  absenting  himself  without 
proper  leave. 

That  the  accused  absented  himself  from  his  command,  guard, 
quarters,  station,  or  camp  for  a  certain  period,  as  alleged. 

(b)  That  such  absence  was  without  authority  from  any  one  com- 
petent to  give  him  leave. 

Section  III. 

DISRESPECT— INSUBORDINATION— MUTINY. 

SIXTY-SECOND  ARTICLE. 

413.  Any  officer  who  uses  contemptuous  or  disrespectful  words  against  the 
President,  Vice  President,  the  Congress  of  the  United  States,  the  Secretary  of 
War,  or  the  governor  or  legislature  of  any  State,  Territory,  or  other  possession 
of  the  United  States  in  which  he  is  quartered  shall  he  dismissed  from  the  serv- 
ice or  suffer  such  other  punishment  as  a  court-martial  may  direct.  Any  other 
person  suhject  to  military  law  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Principles. 

The  contemptuous  or  disrespectful  words,  as  used  in  this  article, 
cover  language  disrespectful  and  contemptuous  in  themselves,  such 
as  abusive  epithets,  denunciatory  or  contumelious  expressions,  or 
intemperate  or  malevolent  comments  upon  official  or  personal  acts, 
etc..  or  words  disrespectful  or  contemptuous  because  of  the  connec- 
tion in  which  and  the  circumstances  under  which  they  arc  used. 

It  is  essential  that  a  person  against  whom  such  words  are  used  be 
in  one  of  the  offices  named  at  the  time;  but  it  is  immaterial  whether 
the  words  arc  spoken  against  him  in  his  official  or  private  capacity. 

The  truth  or  falsity  of  the  statements  is,  as  a  rule,  immaterial. 

Trials  for  offenses  covered  by  this  article  have  usually  been  for 
the  use  of  "contemptuous  or  disrespectful  words  against  the  Presi- 
dent," or  the  Government  mainly  as  represented  by  the  President. 
The  deliberate  employment  of  denunciatory  or  contumelious  lan- 
■1  to  the  President,  whether  spoken  in  public  or  pub 
lished,  or  conveyed  in  a  communication  designed  to  be  made  publi< 
has,  in  repeated  cases,  been  made  the  subject  of  charges  and  tria 
under  this  article.     (Digest,  |>.  120;  Winthrop,  p.  872.) 

The  Language  used  must  be  disrespectful  or  contemptuous.    Adverse 

criticism  of  the  Executive  expressed  in  emphatic  language  in  the  hea-. 

of  political  disi  ussion,  but  not  apparently  intended  to  be  personally 

•  spectful,  should  not  be  made  the  basis  of  trial  under  this  article. 

(Idem.) 


PUNITIVE    ARTICLES.  207 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  a  number  of  offenses  which  may  be  treated  under 
the  general  term  of  "  disrespect  toward  the  President,  etc." 

I.  DISRESPECT  TOWARD  TJLE  PRESIDENT,  ETC. 


(a)  That  the  accused  used  certain  contemptuous  or  disrespectful 
words  against  the  President,  or  other  of  the  authorities  mentioned 
in  the  article,  as  alleged. 

(b)  Where  such  words  are  not  contemptuous  or  disrespectful  in 
themselves  that  the  words  were  used  under  certain  circumstances  or 
in  a  certain  connection,  or  that  a  certain  intended  meaning  gave  them 
the  character  of  contemptuous  or  disrespectful  words,  as  alleged. 

SIXTY-THIRD  ARTICLE. 

414.  Any  person  subject  to  military  law  who  behaves  himself  with  disrespect 
toward  his  superior  officer  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

The  disrespectful  behavior  contemplated  by  this  article  is  such  as 
detracts  from  the  respect  due  to  the  authority  and  person  of  a  superior 
officer.    It  may  consist  in  acts  or  language,  however  expressed. 

It  is  not  essential  that  the  disrespectful  behavior  be  in  the  presence 
of  the  superior,  but  in  general  it  is  considered  objectionable  to  hold 
one  accountable  under  this  article  for  what  was  said  or  done  by  him 
in  a  purely  private  conversation. 

The  officer  toward  whom  the  disrespectful  behavior  was  directed 
must  have  been  the  superior  of  the  accused  at  the  time  of  the  acts 
charged;  but  by  superior  is  not  necessarily  meant  a  superior  in  rank, 
as  a  line  officer,  though  inferior  in  rank,  may  be  the  commanding 
officer,  and  thus  the  superior  of  a  staff  officer,  such  as  a  surgeon. 

Disrespect  by  words  may  be  conveyed  by  opprobrious  epithets  or 
i  contumelious  or  denunciatory  language.     (Winthrop,  p.  874.) 

Disrespect  by  acts  may  be  exhibited  in  a  variety  of  modes — as  neg 
lecting  the  customary  salute,  by  a  marked  disdain,  indifference,  inso 
lence,  impertinence,  undue  familiarity,  or  other  rudeness  in  the  pres 
ence  of  the  superior  officer.    (Winthrop,  p.  875.) 

It  is  not  essential  that  the  behavior  be  intentional,  and  it  is  imma 
terial  that  only  facts  were  stated;  but  where  the  person  who  did  tl 
acts  or  spoke  the  words  did  not  know  that  the  person  against  whoi 
they    were   directed    was   his   superior   officer,    such    ignorance 
defense. 


208 


IsT AN  UAL   FOR    COTJXtTS-MABTIAL. 
A  WAIiTSIS    AND    PitOOF. 


The  article  applies  to  any  person  subject  to  military  law.  See 
Article  2. 

The  article  defines  one  offense,  that  is,  disrespect  toward  a  superior 
officer. 

I.  DISRESPECT  TOWARD  A  BTJPERIOB   OFFICES. 


(a)  That  th<  !  did  or  omitted  to  do  certain  acts  or  spoke 

certain  words  toward  a  certain  officer,  as  alleged. 

(l>)  That  the  behavior  involved  in  such  acts,  omissions,  or  words 
was  that  under  certain  circumstance  or  in  a  certain  connection  or 
with  a  certain  meaning,  as  alleged. 

(c)  That  the  officer  toward  whom  the  acts,  omissions,  or  words 
were  directed  was  the  accused's  superior  officer. 

SIXTY-FOURTH  ARTICLE. 

415.  Any  person  subject  to  military  law  who,  on  any  pretense  whatsoever, 
strikes  his  superior  officer  or  draws  or  lifts  up  any  weapon  or  offers  any  violence 
against  him,  being  in  the  execution  of  his  office,  or  willfully  disobeys  any  law- 
ful command  of  his  superior  officer,  shall  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct. 

Definitions  and  Principles. 

The  phrase  "  on  any  pretense  whatsoever  "  is  not  to  be  understood 
as  excluding  as  a  defense  the  fact  that  the  striking  was  done  in 
legitimate  self-defense  or  in  the  discharge  of  some  duty,  such  as  is 
enjoined  by  the  sixty-seventh  article. 

By  "  superior  officer  "  is  meant  not  only  the  commanding  officer  of 
the  accused,  whatever  may  be  the  relative  rank  of  the  two,  but  any 
other  commissioned  officer  of  rank  superior  to  that  of  the  accused. 
That  the  accused  did  not  know  the  officer  to  be  his  superior  is 
available  as  a  defense. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
Article  2. 

Tin-  article  embraces  offenses  indicated  by  the  following  diagram: 
Si  ri  Ices 


Any    i 
Bubjecl  to 
military 
law  who 


or 
Draws 
On  any  pretense       or      [  Any  weapon  against 

or 

iy  violence  a 
or 
Willfully  disobeys  any  lawful  command  of  bia  Buperior  office 


Ilis  superior  offici  a 
being  in  the  ex 
ecution  of  hit 
office. 


PUNITIVE    ARTICLES.  209 

Those  offenses  may  be  treated  under  the  following  heads: 

I.  Assaulting  superior  officer. 

II.  Disobeying  superior  officer. 

I.    ASSAULTING    SUPERIOR   OFFICER. 

The  word  "strikes'*  means  an  intentional  blow  with  anything  by 
which  a  blow  can  be  given. 

The  phrase  "draws  or  lifts  up  any  weapon  against''  covers  any 
simple  assault  committed  in  the  manner  stated. 

The  offense  consisting  either  in  a  mere  threatening  of  violence 
without  anything  further  being  proposed,  or  in  an  attempt  to  do 
violence  which  is  not  effectuated.  The  weapon  chiefly  had  in  view 
by  the  word  "  draw  "  is  no  doubt  the  sword;  the  term  might,  however, 
apply  to  a  bayonet  in  a  sheath,  or  to  a  pistol;  and  the  drawing  of 
either  in  an  agj  manner,  or  the  raising  or  brandishing  of  the 

same  minaciously  in  the  presence  of  the  superior  and  at  him  is  the 
sort  of  act  contemplated.  The  raising  in  a  threatening  manner  of  a 
firearm  (whether  or  not  loaded)  or  of  a  club,  or  any  implement  or 
tiling  by  which  a  serious  blow  could  be  given,  would  be  within  the 
I'tioii — "'lifts  up."'     (Winthrop,  p.  S79.) 

The  phrase  "  offers  any  violence  against  him  "  es  any  form 

of  battery  or  of  mere  assault  not  embraced  in  the  preceding  more 

i tie  terms  "strikes"'  and  "  draws  or  lifts  up."    But  the  violence 

where  not  executed  must  be  physically  attempted  or  menaced.     A 

mere  threatening  in  words  would  not  be  an  offering  of  violence  in  the 

of  the  article.     (Winthrop,  pp.  879  and  880.) 

An  officer  is  in  the  execution  of  his  office  "when  engaged  in  any 

act  or  service  required  or  authorized  to  be  done  by  him  by  statute, 

lation,  the  order  of  a  superior  or  military  usage.*'     (Winthrop, 

si.) 

PROOF. 

(«)   That  the  accused  struck  a  certain  officer  with  or  without  a 

in    thing  or  weapon  or  drew   or  lifted   up   a   certain   weapon 

-t  him  or  offered  violence  against  him,  as  alleged. 

(b)   That  such  officer  was  the  accused's  superior  officer  at  the  time. 

i  hat  such  superior  officer  was  in  the  execution  of  his  office 

at  the  time,  as  alleged. 

II.   DISOBEYING  SETERIOR  OFFICER. 

The  willful  disobedience  contemplated  is  such  as  shows  an  inten- 
tional defiance  of  authority,  as  wher<    .<   soldier  is  given  an  order 

15 


210  MAM  AL  FOR   COURTS-MARTIAL. 

by  an  officer  to  do  or  cease  from  doing  a  particular  thing  at  one- 
ami  refuses  to  do  what  is  ordered  or  simply  omits  to  do  it. 

Where  the  order  is  operative  in  futuro  a  mere  neglect  to  comply 
with  it  "through  heedlessness,  remissness,  or  forget  fulness  is  an 
offense  chargeable  not  in  general  under  this  article,  but  under  the 
"general  article"  (Winthrop,  p.  884),  and  the  same  is  true  of  a 
mere  refusal  to  obey  such  an  order  before  the  time  set  for  its 
execution. 

The  order  must  relate  to  military  duty  and  be  one  which  the 
superior  officer  is  authorized  under  the  circumstances  to  give  the 
accused.  Disobedience  of  an  order  which  has  for  its  sole  object  the 
attainment  of  some  private  end  or  which  is  given  for  the  sole  pur- 
pose of  increasing  the  penalty  for  an  offense  which  it  is  expected  the 
accused  may  commit  is  not  punishable  under  this  article. 

An  accused  can  not  be  convicted  of  a  violation  of  this  article  if 
the  orden  was  in  fact  unlawful;  but,  unless  the  order  is  plainly 
illegal,  the  disobedience  of  it  is  punishable  under  the  general  article, 
i.  e.,  the  ninety-sixth  article. 

To  justify  from  a  military  point  of  view  a  military  inferior  in 
disobeying  the  order  of  a  superior,  the  order  must  be  one  requiring 
something  to  be  done  which  is  palpably  a  breach  of  law  and  a  crime 
or  an  injury  to  a  third  person,  or  is  of  a  serious  character  (not  in- 
volving unimportant -consequences  only)  and  if  done  would  not  be 
susceptible  of  being  righted.  An  order  requiring  the  performance  of 
a  military  duty  or  act  can  not  be  disobeyed  with  impunity  unless  it 
has  one  of  these  characteristics. 

That  obedience  to  a  command  involved  a  violation  of  the  accused's 
religious  scruples  is  not  a  defense. 

Failure  to  comply  with  the  general  or  standing  orders  of  a  depart- 
ment, district,  post,  etc.,  or  with  the  Army  Regulations,  is  not  an 
offense  under  this  article,  but  under  the  ninety-sixth  article;  and 
so  of  a  nonperformance  by  a  subordinate  of  any  mere  routine  duty. 

The  form  of  the  order  is  immaterial  as  is  the  method  by  which  it 
is  transmitted  to  the  accused;  but  the  communication  must  amount 
to  an  order  and  the  accused  must  know  that  it  is  from  his  superior 
officer;  that  is,  a  commissioned  officer  who  is  authorized  to  give  the 
order  whether  he  is  superior  in  rank  to  the  accused  or  not. 


(a)   That  the  accused  received  a  certain  command  from  a  certain 
officer  as  alleged. 

(I>)  That  such  officer  was  the  accused's  superior  officer. 
(c)  That  the  accused  willfully  disobeyed  such  command. 


PUNITIVE   ARTICLES. 


211 


SIXTY-FIFTH  ARTICLE. 

416.  Any  soldier  who  strikes  or  assaults,  or  who  attempts  or  threatens  to  strike 
or  assault,  or  willfully  disobeys  the  lawful  order  of  a  noncommissioned  office" 
while  in  the  execution  of  his  office,  or  uses  threatening  or  Insulting  Language, 
or  behaves  in  an  insubordinate  or  disrespectful  manner  toward  a  noncommls 
sioned  officer  while  in  the  execution  of  his  office,  shall  be  punished  as  a  court 
martial  may  direct . 

Definitions  and  Principles. 

This  article  has  the  same  general  objects  with  respect  to  noncom- 
missioned officers  as  the  sixty-third  and  sixty-fourth  articles  have 
with  respect  to  commissioned  officers,  namely,  to  insure  obedience  to 
their  lawful  orders,  and  to  protect  them  from  violence,  insult,  or 
disrespect. 

The  t  irms  "  willful  disobedience,"  "  lawful  order,"  and  "  in  the  ex= 
ecution  of  his  office"  are  used  in  the  same  sense  as  in  the  sixty-fourth 
article. 

Analysis  and  Proof. 

The  article  applies  to  enlisted  men  only. 

The  article  embraces  offenses  indicated  by  the  following  diagram: 


Any  soldier  who 


Strikes 
or 
Assaults 

or 
Attempts  1        [  Strike 

or         \  to  I        or 
Threatens  ]         {  Assault 

or 
Willfully     disobeys    the 
lawful  order  of 
or 

Tlireatening  language 

or 
Insulting  language 


A  noncommissioned  officer  while  in 
the  execution  of  his  office. 


or 


Behaves  in  an 


f  Insubordinate  manner 

or 

Disrespectfal  manner 


Toward  a  noncommis- 
sioned officer  while 
in  the  execution  of 
his  office. 


These  offenses  may  be  briefly  treated  under  the  following  headings: 

I.  Assaulting  a  noncommissioned  officer. 

II.  Disobe}ring  a  noncommissioned  officer. 

III.  Using  threating  or  insulting  language  or  behaving  in  an. 
insubordinate  or  disrespectful  manner  toward  a  noncommissioned 
officer. 


212  MANUAL  FOR   COURTS-MARTIAL. 

I.    ASSAULTING  A   NONCOMISSIONED  OFFICER. 

For  definition  of  the  offense,  see  ninety-third  article,  item  IX. 

The  part  of  the  article  relating  to  assaults  covers  any  unlawful 
violence  against  a  noncommissi  med  officer  in  the  execution  of  his 
office,  whether  such  violence  is  merely  threatened  or  is  advanced  in 
any  degree  toward  actual  application. 


(<f)  That  the  accused  soldier  struck  a  certain  noncommissioned 
officer  with  a  certain  thing,  or  assaulted,  or  attempted  or  threatened 
to  strike  or  assault  him  in  a  certain  manner,  as  alleged. 

(I)  That  such  noncommissioned  officer  was  at  the  time  in  the 
a  ion  of  his  office,  as  alleged. 

1J.    DISOBEYING  A  X  ON  COMMISSIONED  OFFICER. 


(a)  That  the  accused  soldier  received  a  certain  command  from  a 
certain  noncommissioned  officer,  as  alleged. 

(h)  That  the  noncommissioned  officer  was  in  the  execution  of  his 
office. 

(c)  That  the  accused  soldier  willfully  disobeyed  such  command. 

m.    USING   THREATENING  OR   INSULTING    ;  OR   BEHAVING   IN   AN 

SUBORDINATE    OK    DISRESPECTFUL    MANNER    TOWARD    A    NONCOMMIS- 
SIONED OFFICER. 

The  phrase  "while  in  the  execution  of  his  office"  limits  the  appli- 

on  of  this  part  of  the  article  to  language  and  behavior  within 

sight  or  hearing  of  the  noncommissioned  officer  toward  whom  it  is 

used;  the  word  "toward"  not  being  used  in  the  same  sense  as  in  the 

sixty-third  article. 


(a)  That  the  accused  used  certain  language  or  did  or  omitted  to 
do  certain  acts  under  certain  circumstances,  or  in  a  certain  manner 
or  with  a  certain  intended  meaning,  as  alleged. 

(h)  That  such  language  or  behavior  was  used  toward  :i  certain 
noncommissioned  officer. 

(o)  That  such  noncommissioned  officer  was  at  the  time  in  the 
ex(  cution  of  his  office,  as  alleged. 


PUNITIVE   ARTICLES.  213 

SIXTY-SIXTH  ARTICLE. 

417.  Any  person  subject  to  military  law  who  attempts  to  create  or  who  begins, 
excites,  raiis..-,  or  joins  in  any  mutiny  or  sedition  in  any  company,  party,  post, 
camp,  detachment,  guard,  or  other  command  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

Mutiny  imports  collective  insubordination,  and  necessarily  in- 
cludes some  combination  of  two  or  more  persons  in  resisting  lawful 
military  authority. 

Sedition  implies  the  raising  of  commotion  or  disturbance  against 
the  State;  it  is  a  revolt  against  legitimate  authority  and  differs 
from  mutiny  in  that  it  implies  a  resistance  to  lawful  civil  power. 

The  concert  of  insubordination  contemplated  in  mutiny  or  sedi- 
tion need  not  be  preconceived  nor  is  it  necessary  that  the  act  of 
insubordination  be  active  or  violent.  It  may  consist  simply  in  a 
persistent  and  concerted  refusal  or  omission  to  obey  orders  or  to 
do  duty  with  an  insubordinate  intent. 

Analysis  and  Proof. 

The  article,  applies  to  any  person  subject  to  military  law. 
The  article  defines  five  offenses  relating  to  mutiny  and  five  relat- 
ing to  sedition. 

I.  Attempting  to  create  a  mutiny  (or  sedition). 

II.  Beginning  a  mutiny   (or  sedition). 
ITI.  Joining  in  a  mutiny  (or  sedition). 

IV.  Exciting  a  mutiny  (or  sedition). 

V.  Causing  a  mutiny  (or  sedition). 

I.   ATTEMPTING  TO  CREATE  A   MUTINY  OR  SEDITION. 

omit  a  crime  is  an  act  done  with  specific  intent 
ommit  the  particular  crime  and  proximately  tending  to,  but  fall- 
ing short  of,  its  consummation.  There  must  be  an  apparent  possi- 
bility to  commit  the  crime  in  the  manner  specified.  Voluntary 
abandonment  of  purpose  after  an  act  constituting  an  attempt  is 
not  a  defense. 

The  intent  whirl)  distinguishes  mutiny  or  sedition  is  the  intent 
to  resist  lawful  authority  in  combination  with  others.  The  intent 
to  create  a  mutiny  or  sedition  may  be  declared  in  words,  or,  as  in 
all  other  case*,  it  may  be  inferred  from  acts  done  or  from  the 
surrounding  circumstances. 


21-i  MANUAL   FOR    COUKTS-MARTIAL. 

A  single  individual  may  harbor  an  intent  to  create  a  mutiny  and 
may  commit  some  overt  act  tending  to  create  a  mutiny  or  sedition 

and  so  be  guilty  of  an  attempt  to  create  a  mutiny  or  sedition,  alike 
whether  he  was  joined  by  others  or  not,  or  whether  a  mutiny  or  sedi 
tioii  actually  followed  or  not. 


(a)  An  act  or  acts  of  accused  which  proximately  tended  to  create 
a  certain  intended  (or  actual)  collective  insubordination. 

(b)  A  specific  intent  to  create  a  certain  intended  (or  actual) 
collective  insubordination. 

(c)  That  the  insubordination  occurred  or  was  intended  to  occur 
in  a  company,  party,  post,  camp,  detachment,  guard,  or  other 
command. 

n- in.  BEcixxixd  on  joining  i\  a  mutiny. 

There  can  be  no  actual  mutiny  or  sedition  until  there  has  been  an 
overt  act  of  insubordination  joined  in  by  two  or  more  persons,  and 
so  no  person  can  be  guilty  of  beginning  or  joining  in  a  mutiny  unless 
an  overt  act  of  mutiny  is  proved.  A  person  can  not  be  guilty  of 
beginning  a  mutiny  unless  he  is  the  first,  or  among  the  first,  to 
commit  an  overt  act  of  mutiny;  a  person  can  not  join  in  a  mutiny 
without  joining  in  some  overt  act.  Hence  presence  of  the  accused 
at  the  scene  of  mutiny  is  necessary  in  these  two  cases. 


(a)  The  occurrence  of  certain  collective  insubordination  in  a  com- 
pany, party,  post,  camp,  detachment,  or  other  command. 

(b)  That  the  accused  began  or  joined  in  the  certain  collective 
insubordination. 

TV-V.    CAUSING   OR  EXCITING   A   MUTINY. 

As  in  II  and  III,  sn^ra,  no  person  can  be  guilty  of  caus-ing  or  ex- 

■!  a  mutiny  unless  an  overt  act  of  mutiny  follows  his  efforts. 

But  a  person  may  excite  or  cause  a  mutiny  without  taking  personal 

part  in  or  being  present  at  the  demonstrations  of  mutiny  which  result 

from  his  activities. 

PROOF. 

(a)  The  occurrence  of  certain  collective  insubordination  in  a  cer- 
tain company,  party,  post,  camp,  detachment,  or  guard,  or  other 
command. 

(b)  Acts  of  the  accused  tending  to  create  or  excite  the  certain  col- 
lec(i\ e  insubordination. 


PUNITIVE   ARTICLES.  215 

SIXTY-SEVENTH  ARTICLE. 

418.  Any  officer  or  soldier  who,  being  present  at  any  mutiny  or  sedition,  does 
not  use  his  utmost  endeavor  to  suppress  the  same,  or  knowing  or  having  reason 
to  believe  that  a  mutiny  or  sedition  is  to  lake  place,  does  not  without  delay  give 
information  thereof  to  his  commanding  officer  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  pages  213,  214. 

Analysis  and  Proof. 

The  article  applies  only  to  officers  and  soldiers.  It  defines  two 
offenses  relating  to  mutiny  and  two  relating  to  sedition. 

I.  Being  present  at  a  mutiny  (or  sedition),  failing  to  use  the 
utmost  endeavor  to  suppress  it. 

I I.  Having  knowledge  or  reason  to  believe  that  a  mutiny  (or  sedi- 
tion) is  to  take  place,  failing  to  give  information  thereof  to  his 
commanding  officer  without  delay. 

I.  FAILURE  TO   SUPPRESS  MUTINY    (OR  SEDITION). 

Mere  presence  countenancing  such  collective  insubordinations  and 
disturbances  as  mutinies,  riots,  and  seditions  has  been  considered 
criminal  for  over  a  century.  The  article  goes  a  step  further  and 
requires  of  officers  and  soldiers  their  utmost  endeavors  to  suppress 
such  disorders. 

One  is  not  present  at  a  mutiny  unless  an  act  or  acts  of  collective 
insubordination  occur  in  his  presence. 

tst  endeavor  is  a  relative  term.  The  rule  governing  the  lawful 
use  of  force  to  suppress  crime  or  arrest  wrongdoers  is  that  as  much 
force  may  be  used  as  is  reasonably  necessary  to  accomplish  the  desired 
purpose,  and  no  more.  This  article  has  been  construed  as  authoriz- 
ing and  requiring  the  most  extreme  measures — even  to  the  using  of 
a  dangerous  weapon  and  the  taking  of  life — where  such  extreme 
measures  arc  reasonably  necessary.  But  all  the  circumstances  of 
necessity  are  to  be  considered.  Means  which  in  war  and  before  the 
enemy  would  be  not  only  justified,  but  laudable,  might,  in  time  of 
peace,  render  the  person  employing  them  criminally  and  civilly  liable 
for  abuse  of  authority. 

PROOF. 

(a)  The  occurrence  of  an  act  or  acts  of  collective  insubordination 
in  the  presence  of  the  accused. 

(7j)  Acts  oi-  omissions  of  the  accused  which  constitute  a  failure  to 
use  his  utmost  endeavor  to  suppress  such  acts. 


216  MANUAL  FOR  COURTS-MARTIAL. 

H.    FAILURE   TO    GIVE    INFORMATION    OF    -Ml  TINY    (OR   SEDITION). 

Where  circumstances  known  to  the  accused  arc  such  as  would  have 

cause. 1   a   reasonable  man   in  the  same  or  similar  circumstances  to 

■  that  a  mutiny  or  sedition  was  impending,  these  circumstances 

will  be  sufficient  to  charge  the  accused  with  such  reason  to  believe  as 

will  render  him  culpable  under  the  article. 

It  is  not  a  necessary  element  of  the  crime  that  the  Impending 
mutiny  or  sedition  materialize. 

"  Delay  "  imports  the  lapse  of  an  unreasonable  time  without  action. 
The  expression  "commanding  officer"  here  includes  in  its  mean- 
ing any  officer  having  a  military  command  over  the  person  who  has 
knowledge  or  reason  to  believe  that  a  mutiny  or  sedition  is  im- 
ling. 

moof. 

;  hat  the  accused  knew  that  a  mutiny  or  sedition  was  impend- 
ing or  that  he  knew  of  circumstances  that  would  have  induced,  in  a 
reasonable  man.  a  belief  that  a  mutiny  or  sedition  was  impending. 
(b)  Acts  or  omissions  of  the  accused  which  constitute  a  failure 
or  unreasonable  delay  in  informing  his  commanding  officer  of  his 
knowledge  or  belief. 

SIXTY-EIGHTH  ARTICLE. 

419.  All  oJ  noncommissioned  officers  have  power  to  pari  ami  quell  all 

quarrels,  frays,  and  disorders  among  persons  subject  to  military  law  ami  to 
order  officers  who  take  part  in  the  same  into  arrest,  ami  other  persons  subject 
to  military  law  who  take  part  in  the  same  into  arrest  or  confinement,  as  cir- 
-  may  require,  until  their  proper  superior  officer  Is  acquainted  there- 
with. Ami  whosoever,  being  so  ordered,  refuses  to  obey  such  officer  or  non- 
commissioned  officer  or  draws  a  weapon  upon  or  otherwise  threatens  or  does 
violence  to  him  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  fray  is  a  fight  in  a  public  place  to  the  terror  of  the  people,  in 
!i  acts  of  violence  occur  or  dangerous  weapons  are  exhibited  or 
threatened  to  lie  used.  All  persons  aiding  or  abetting  a  fray  are 
principals.  The  word  "frays"  is  thus  seen  to  be  somewhat  restric- 
tive, but  the  words  "quarrels"  and  "disorders"  include  any  dis- 
turbance of  a  contentious  character  from  a  mere  war  of  words  to 
a  rout  or  riot. 

To  quell  is  to  quiet,  allay,  abate,  or  put  down. 

It  is  immaterial  under  the  article  whether  the  officer  or  noncom- 
missioned officer  who  essays  to  pari  or  quel]  quarrels,  frays,  and  dis- 
order-  is  on  a   duty  status  or  nut.  as  it   is  immaterial    whether  the 


PUNITIVE    ART! i  217 

persons  engaged  in  the  disorder  are  superior  to  him  in  rank 
or  nut. 

Analysis  and  Proof. 

The  punitive  portion  of  the  article  applies  to  all  persons  subject 
to  military  Law.  It  is  designed  to  enforce  the  authority  of  officers 
or  noncommissioned  officers  to  part  and  quell  certain  disorders  and 
to  order  the  participants  into  confinement  or  arrest. 

The  article  defines  four  crimes: 

I.  Refusal  to  obey  an  order  of  an  officer  or  noncommissioned  officer 
placing  the  accused  in  arrest  or  confinement. 

II.  Upon  being  ordered  into  arrest  or  confinement,  drawing  a 
on  on  the  officer  or  noncommissioned  officer  giving  the  order. 

III.  Upon  being  ordered  into  arrest  or  confinement,  threatening 
'leer  or  noncommissioned  officer  giving  the  order. 

IV.  Upon  being  ordered  into  arrest  or  confinement,  doing  vio- 
to  the  officer  or  noncommissioned  officer  giving  the  order. 

I.    i  lERS  INTO  ARREST  OR  CONFINEMENT. 

It  should  a  Lat  the  power  conferred  by  the  article  was  being 

exercised  for  the  purpose  stated,  and  therefore  the  charges  and  proof 
should  refer  to  the  order  given  during  the  disorder.  It  should  be 
made  to  appear  that  the  accused  heard  or  ui  the  order  and 

knew  that  the  person  giving  it  was  an  officer  or  noncommissioned 


(a)   That  the  accused  was  a  participant  in  a  certain  quarrel,  fray, 

ir  occurring  ons  subject  to  military  law. 

(l>)  That  during  the  disorder  a  certain  officer  or  noncommissioned 

•  !•  ordered  the  accused  into  arrest  I  is  an  officer)  or 

info  arrest  or  confin<  ed  is  a  person  subject  to  military 

law  other  than  an  officer),  with  a  view  to  quell  or  part  the  disorder. 

That  the  accused  refused  to  obey. 

H,    ill.   IV.  Till  ;  A    WEAPON    I  PON,   OB   OFFERING    VIO- 

The  proof  of  the  second,  third,  and  fourth  crimes  defined  by  the 
article  should  follow  in  form  and  essentials  the  proof  required  under 
the  first  crime  (disobedience  of  order  into  arresl  or  confinement, 
gupra),  except  that  in-trad  of  proving  a  refusal  to  obey  (par.  3, 
apon,  making  a  threat,  or  doing  violence 
musl  be  proved  as  the  consummation  of  the  particular  offense.  The 
ed  includ  •  nacing  action,  either  by 

gesture  or  I  y 


218  MANUAL  FOR   COUK'I 'S-  M  Alt  1  I  Al.. 

S»  iiu.N  IV— Abbbstj  Confinement. 

SIXTY-NINTH  ARTICLE. 

420.  An  officer  charged  with  crime  or  with  ;i  serious  offense  cinder  these  arti- 
cles shall  be  placed  In  arresl  by  the  commanding  offl< «r,  and  in  exceptional  oases 
an  officer  so  charged  may  be  placed  In  confinement  by  the  same  authority,  A 
soldier  charged  with  crime  or  with  b  serious  offense  under  these  articles  shall 
be  placed  In  confinement,  and  when  charged  with  a  minor  offense  he  may  tx 

placed    in    arrest.      Aia     Other    person    Subject    to    military    law    charged    With 

crime  or  with  a  serious  offense  under  these  articles  shall  he  placed  in  confine- 
ment or  in  aire-:,  as  circumstances  may  require;  and  when  charged  with  a 
minor  offense  such  person  may  be  placed  in  arrest  Any  person  placed  In  ar- 
rest under  the  provisions  of  this  article  shall  thereby  be  restricted  to  his  bar- 
racks, quarters,  or  tent,  unless  such  limits  shall  be  enlarged  by  proper  authority. 

Any  officer  who  breaks  his  arrest  or  who  escapes  from  Confinement  before  he  19 
Bet  at  liberty  by  proper  authority  shall  lie  dismissed  from  the  service  or  suffer 
such  other  punishment  as  a  conn -martial  may  direct;  and  any  oilier  person 
suhject  to  military  law  who  escapes  from  confinement  or  who  breaks  his  arrest 
before  he  is  set  at  liberty  by  proper  authority  shall  he.  punished  as  a  court- 
martial   may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  arrest  of  an  officer  has  been  compared  to  an  enlargement  on 
bail,  the  security  being  the  officer's  commission.  It  is  for  this  rea- 
son that  the  punishment  may  include  dismissal.  The  distinction  be- 
tween arrest  and  confinement  lies  in  the  difference  between  the  kinds 
of  restraint  imposed.  In  arrest  the  restraint  is  moral  restraint  im- 
posed by  the  orders  fixing  the  limits  of  arrest,  or  by  the  terms  of  the 
article.    Confinement  imports  some  physical  restraint. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  The 
article  defines  two  crimes: 

I.  Breach  of  arrest. 

II.  Escape  from  confinement. 

I.  BREACH  OF  ARREST. 

The  offense  is  committed  when  the  person  restrained  infrin| 
limits  set  by  orders,  or  by  the  sixty-ninth  article  of  war.  and  the 
intention  or  motive  that  actuated  him  is  immaterial  to  the  issue  of 
guilt,  though,  of  course,  proof  of  inadvertence  or  bona  fide  mistake 
is  admissible  to  guide  the  court  in  assessing  punishment.  The  un- 
lawfulness of  the  arrest  is  a  valid  defense,  but  innocence  of  the  ac- 
tion  upon  which  the  arresl  is  imposed  is  entirely  irrelevant. 


PUNITIVE   ARTICLES.  219 


(a)  That  the  accused  was  duly  placed  in  arrest. 

(b)  That  before  he  was  set  at  liberty  by  proper  authority  he  trans- 
gressed the  limits  fixed  by  the  sixty-ninth  article  of  war  or  by  the 
orders  of  proper  authority. 

II.   ESCAPE  FROM   CONFINEMENT. 

An  escape  may  be  either  with  or  without  force  or  artifice,  and 
either  with  or  without  the  consent  of  the  custodian.  Any  com- 
pleted casting  off  of  the  restraint  of  confinement,  before  being  set 
at  liberty  by  proper  authority,  is  an  escape  from  confinement,  and  a 
lack  of  effectiveness  of  the  physical  restraint  imposed  is  immaterial 
to  the  issue  of  guilt.  It  seems,  however,  that  an  escape  is  not  com- 
plete until  the  prisoner  has,  momentarily  at  least,  freed  himself  from 
the  restraint  of  his  confinement,  so.  if  the  movement  toward  escape 
is  opposed,  or  before  it  is  completed  an  immediate  pursuit  ensues, 
there  will  be  no  escape  until  opposition  is  overcome,  or  pursuit  is 
shaken  off.  In  cases  where  the  escape  is  not  completed  the  offense 
should  be  charged  as  an  attempt  under  the  ninety-sixth  article  of 
war. 

PROOF. 

(a)  That  the  accused  was  placed  in  confinement. 

(b)  That  he  freed  himself  from  the  restraint  of  his  confinement 
before  he  had  been  set  at  liberty  by  proper  authority. 

SEVENTY-FIRST  ARTICLE. 

421.  No  provost  marshal  or  commander  of  a  guard  shall  refuse  to  receive  or 
keep  nay  prisoner  committed  to  his  charge  by  an  officer  belonging  to  the  forces  of 
the  United  States,  provided  the  officer  committing  shall,  at  the  time,  deliver 
an  account  in  writing,  signed  by  himself,  of  the  crime  or  offense  charged  against 
the  prisoner.  Any  officer  or  soldier  so  refusing  shall  be  punished  as  a  court- 
martial  may  direct. 

Definitions  and  Pi;ixnn.:>. 

The  words  "commander  of  a  guard"'  include  a  commander  of 
any  rank  or  grade,  and  hence  a  noncommissioned  officer  or  private. 
The  term  "any  prisoner'1  includes  civil  as  well  as  military  prisoners 
who  are  committed  according  to  the  terms  of  the  article.  A  provost 
marshal  or  commander  of  a  guard  may  receive  a  prisoner  without 
an  account  of  the  charge  against  him  or  other  due  formality  of  com- 
mitment, but  he  must  receive  the  prisoner  where  i lie  required  ac- 
count in  writing  accompanies  the  commitment. 

A  mere  name  or  description  of  the  offense  charged  in  common  par- 
Lance  when  written  and  signed  by  the  committing  office]  is  a  suffi- 
cient "account  in  writing." 


220  MANUAL  FOR  COUBTS-MABTIAL,  " 

Anai.yhs  a\d  Proof. 

The  article  applies  to  officer  and  soldi 
The  article  defines  one  crime : 

I.  B]  l  USING  TO  RECEIVE  OB  B  "' '■'  A  PRISONER  COMMITTED  WITH  A  WRITTEN 
ACCOUNT  OF  THE  OFFENSE  CHARGED  AGAIN8T  HIM  SIGNED  BY  THE 
01  in  BR  COMMITTING  THE  PRISONER. 

ili.it  the  accused  was  a  provost  marshal  or  commander  of  a 
guard. 

(M   That  a  certain  prisoner  was  committed  to  his  charge  by  a 
in  officer  belonging  to  the  forces  of  the  United  States. 

(c)  That,  at  the  time  of  commitment,  the  committing  officer  de- 
livered to  the  accused  a  written  account  of  the  crime  or  offense 
charged  against  the  prisoner,  Avhich  account  was  signed  by  the 
committing  officer. 

(d)  That  the  accused  refused  to  receive  or  keep  the  prisoner. 

SEVENTY-SECOND  ARTICLE. 

422.  Every  commander  of  a  guard  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  confinement,  or  as  soon  as  he  is  re- 
lieved from  his  guard,  report  in  writing  to  the  commanding  oflicer  (lie  name  of 
such  prisoner,  the  offense  charged  against  him,  and  the  name  of  the  oflicer  com- 
mitting him;  and  if  he  fails  to  make  such  report  he  shall  be  punished  as  a 
court-martial  may  direct. 

Definitions  and  Principles. 

The  term  "  commander  of  a  guard  "  includes  commanders  of  any 
rank  or  grade. 

The  term  "  prisoner  "  includes  civilian  as  well  as  military  prisoners. 

The  term  "  commanding  oflicer  "  imports  the  commander  to  whom 
the  guard  report  is  properly  made. 

Analysis  and  Proof. 

The  article  applies  to  officers  and  soldiers.     It  defines  one  offense: 

1.    lAll.t  RE  TO  RENDER  A  REPORT  AS  PRESCRIBED. 


(a)   That  the  accused  was  commander  of  a  certain  guard. 
(A)  That  a  prisoner  was  committed  to  his  charge. 

(c)   That  the  accused — 

1.  Failed  to  make  any  report  at  all.  or, 

2.  That  the  report  rendered  was  not  in  writing,  or. 


PUXITIVE    ARTICLES.  221 

3.  That  no  report  was  rendered  within  -24  hours  after  confinement) 
or  as  soon  as  accused  was  relieved  from  his  guard,  or, 

t.  That  the  report  failed  to  set  forth  one  or  more  of  the  particulars 
prescribed. 

SEVENTY-THIRD   ARTICLE. 

423.  Any  person  subject  to  military  law  who,  without  proper  authority,  re- 
any  prisoner  duly  committed  to  his  charge,  or  who  through  neglect  <>r 
design  suffers  any  prisoner  bo  committed  to  escape,  shall  be  punished  as  a  court- 
martial  may  d 

I  >i  :  [nitions  and  PrinctpiiES. 

The  article  describes  three  long-recognized  common-law  crimes. 

It  looks  to  the  punishment  of  any  person  who  is  responsible  for 

the  unauthorized  release 'or  escape  of  a  prisoner  duly  committed  to 

his  charge,  and  hence  any  member  of  a  guard,  party,  escort,  and 

convoy,  or  any  person  subject  to  military  law  to  whose  charge  a 

>ner  is  committed  may  be  guilty  of  an  offense  under  this  article. 

Where  a  prisoner  is  committed  to  the  commander  of  a  guard,  party, 

rt,  or  convoy,  and  is  released  by,  or  escapes  from,  a  subordinate 

or  subordinates  to  whom  the  commander  has  duly  delegated  custody 

of  the  prisoner,  or  to  whom  that  custody  duly  falls  as  an  incident  of 

duty,  all   will  be  responsible  under  this  article,  except  those  who 

can  show  that  the  escape  or  release  occurred   under  nces 

hich  they  could  not  reasonably  guard. 

The   words  "any   prisoner"'   import  both   military   and   civilian 

tiers. 
A  person  may  receive  a  prisoner  in  his  capacity  as  commander  or 
I  a  guard,  or  he  may  be  burdened  with  such  a  responsibility 
t.     In  the  former  case,  the  lowest  authority  compe- 
tent to  release  the  prisoner  is  the  chief  of  the  command,  of  the  guard 
hich  the  |  held,    in  i!"'  latter  case,  the  authority  who 

sed  the  trust,  and  who  was  competent  to  do  so,  is  the  lowest 
"proper  authority"  to  order  a  release. 
While  inder  of  the  guard  must  receive  n  prisoner  properly 

nutted  by  r  the  power  of  the  committing  officer  ceases 

-in  as  he  has  committed  the  prisoner,  and  he  is  not  a  '"proper 
authority  "  to  ord<  r  a  release. 

ponsible  under  this  article  unless  the  prisoner 
1  out  in  the  discussion  of  the 
-i  article,  an  officer  may  receive  a  prisoner  not  committed 
in  strict  compliance  with  the  terms  of  that  article  or  other  law.  and 
if.  having  so  received  ;i  prisoner,  he  releases  such  prisoner,  or  suffers 
him  t"  escape,  he  may  be  held  to  answer,  under  the  ninety-sixth 
article,  for  any  dereliction  of  duty  that  may  be  predicated  on  his 
conduct  in  the  I 


222  MANUAL   FOR   COURTS-MARTIAL. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law. 

The  article  defines  three  crimes: 

T.  Releasing  a  prisoner  without  proper  authority. 

II.  Suffering  a  prisoner  to  escape  through  neglect. 

III.  Suffering  a  prisoner  to  escape  through  design. 

T.    RELEASING    A    PRISONER   "WITHOUT  PROPER   AUTHORITY. 

A  release  imports  a  removal  of  restraint  from  the  prisoner  in 
which  the  custodian  is  the  sole  actor,  and  in  which  the  prisoner  takes 
no  initiative. 

TROOF. 

(a)  That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(b)  That  the  accused  released  him  without  proper  authority. 

II.  SUFFERING   A   PRISONER  TO  ESCAPE  THROUGH   NEGLECT. 

The  word  "neglect''  is  here  used  in  the  sense  of  the  word  "negli- 
gence." 

Xegligenee  is  a  relative  term.  It  is  defined  in  law  as  the  absence  of 
due  care.  The  legal  standard  of  care  is  that  which  would  have  been 
taken  by  a  reasonably  prudent  man  in  the  same  or  similar  circum- 
stances. This  test  looks  to  the  standard  required  of  persons  acting 
in  the  capacity  in  which  the  accused  was  acting.  Thus,  if  the 
accused  is  an  officer,  the  test  will  be,  "How  would  a  reasonably 
prudent  officer  have  acted?"  If  the  circumstances  were  such  as 
would  have  indicated  to  a  reasonably  prudent  officer  that  a  very 
high  order  of  care  was  required  to  prevent  escape,  then  the  accused 
must  be  held  to  a  very  high  order  of  care.  The  test  is  thus  elastic, 
logical,  and  just. 

A  prisoner  can  not  be  said  to  have  escaped  until  he  has  overcome 
the  opposition  that  restrained  him,  and  shaken  off  immediate  pur- 
suit. Once  he  has  done  these  things,  the  fact  that  he  returns,  is 
taken  in  a  fresh  pursuit,  is  killed,  or  dies,  will  not  relieve  the  person 
accused  of  guilt  under  this  article. 


(a)   That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(h)  That  the  prisoner  escaped. 

(e)   Thai  the  accused  did  not  take  such  care  to  prevent  escape  a 
a   reasonably  prudent  person,  acting  in  the  capacity  in  which  the 


PUNITIVE   ARTICLES.  228 

accused  was  acting,  would  have  taken  in  the  same  or  similar  circum- 
stances.    (This  constitutes  neglect.) 

(d)  That  the  escape  was  the  proximate  result  of  the  neglect  of 
;he  accused. 

III.    SUFFERING    A    PRISONER   TO    ESCAPE    THROUGH    DESIGN. 

In  law  a  wrongful  act  is  designed  when  it  is  intended  or  when  it 
results  from  conduct  so  shockingly  and  grossly  devoid  of  care  as  to 
leave  room  for  no  inference  but  that  the  act  was  contemplated  as  an 
extremely  probable  result  of  the  course  of  conduct  followed.  Thus, 
on  a  charge  of  suffering  a  prisoner  to  escape  through  design,  evidence 
of  gross  negligence  may  be  received  as  probative  of  design. 

It  sometimes  happens  that  a  prisoner  has  been  permitted  larger 
limits  than  should  have  been  allowed,  and  an  escape  is  consummated 
without  hindrance.  It  does  not  at  all  follow  that  such  an  escape  is 
to  be  considered  as  designed.  The  conduct  of  the  responsible  cus- 
todian is  to  be  examined  in  the  light  of  all  the  circumstances  of  the 
case,  the  heinousness  of  the  crime  with  which  the  prisoner  is  charged, 
the  notoriety  of  the  prisoner's  guilt,  the  probability  of  his  return, 
and  the  intention  and  motives  of  the  custodian. 


(a)  That  a  certain  prisoner  was  duly  committed  to  the  charge  of 
the  accused. 

(5)  That  the  prisoner  escaped. 

(c)  1.  Acts  of  the  accused  tending  to  permit  escape.  .  2.  Acts  of 
the  accused  probative  of  a  design  to  suffer  the  escape. 

(d)  That  as  a  result  of  these  acts  and  of  this  design  the  prisoner 
escaped. 

SEVENTY-FOURTH  ARTICLE. 

424.  When  any  person  subject  to  military  law,  except  one  who  is  held  by  the 
military  authorities  to  answer,  or  who  is  awaiting  trial  or  result  of  trial,  or 
who  is  undergoing  sentence  for  a  crime  or  offense  punishable  under  these 
articles,  Ls  accused  of  a  crime  or  offense  committed  within  the  geographical 
limits  of  the  States  of  the  Union  and  the  District  of  Columbia,  and  punishable 
l.y  the  laws  of  the  land,  the  commanding  officer  is  required,  except  in  time  of 
war.  upon  application  duly  made,  to  use  his  utmost  endeavor  to  deliver  over 
Bach  accused  person  to  the  civil  authorities,  or  to  aid  the  officers  of  justice  in 
apprehending  and  securing  him,  in  order  that  he  may  be  brought  to  trial  Any 
commanding  officer  who  upon  such  application  refuses  or  willfully  neglects, 
except  in  time  of  war,  to  deliver  over  such  accused  person  to  the  civil  au- 
thorities or  to  aid  the  officers  of  justice  in  apprehending  and  securing  him  shall 
be  dismissed  from  the  service  or  suffer  such  other  punishment  as  a  court- 
martial  may  direct. 

When,  under  the  provisions  of  this  article,  delivery  Is  made  to  (he  civil 
authorities  of  an  offender  undergoing  sentence  of  a  eonrt-martlal,  such  delivery, 
if  followed  by  conviction,  shall  be  held  to  interrupt  the  execution  of  the  sen- 


224  MANUAL   FOR   COURTS-MARTIAL. 

ten« i'  the  court-martial,  and  the  offender  ^hail  be  retained  to  military  cus- 
tody, after  having  answered  to  the  civil  authorities  for  his  offense,  for  the 
completion  of  the  ^ai<i  court-martial  sentence. 

I>i  i  iMiiiixs  and  Principles. 

I.    REFUSING  TO   DELIVER   ACCUSED   PEBSONS. 

The  words  "commanding  officer,"  as  here  used,  import  the  officer 
who  is  chief  of  the  complete  integral  place,  body  of  troops,  or  de- 
tachment, wherein  the  person  accused  is  serving  at  the  time  appli- 
ii  is  duly  made.  The  words  '"upon  application  duly  made" 
ndition  precedent  to  responsibility.  They  are  inserted 
l  >  prevent  the  possibility  of  false  arrests,  and  to  enable  the  com- 
manding  officer  to  satisfy  himself  of  the  true  official  character  of 
him  who  makes  the  application,  of  the  subsistence  of  an  actual  accu- 
sation against  the  person  sought,  and  of  the  locus  of  the  charged 
crime  or  offense. 

The  commanding  officer  should  require  that  the  application  show 
that  the.  crime  or  offense  is  alleged  to  have  been  committed  within 
the  geographical  limits  of  the  States  of  the  Union  and  the  District 
of  Columbia.    A  sufficient  form  of  application  will  be  a  written  com- 
munication setting  forth  the  fact  of  such  an  accusation  of  a  crime 
unitted  within  the  prescribed  limits,  as  would  subject 
the  accused  person  to  arrest  by  the  civil  authorities  for  the  pur- 
->  of  trial,  or  that  a  warrant  for  such  arrest  has  issued,  and  a 
request  that  the  commanding  officer  deliver  the  person  accused  to  the 
civil   authorities  or  assist  them  in  apprehending  or  securing  him. 
When  the  military  jurisdiction  has  actively  attached  in  any  of  the 
.      1  in  the  article,  the  commanding  officer  may,  but  he  is 
d  to  make  the  prescribed  delivery. 

0  AID  IN   APPREHENDING    ACCUSED  TERSONS. 

The  commanding  officer  is  required  not  only  to  deliver  the  person 
accused  but  to  aid  in  apprehending  and  securing  him.  The  article 
therefore  contemplates  cases  where,  after  apprehension  by  either 
the  military  or  civil  authorities,  an  application  is  duly  made  to  a 
commanding  officer  for  his  assistance  in  securing  a  person  subject  to 
military  law  and  accused  of  crime. 

"Utmost  endeavor"  is  to  be  understood  in  a  reasonable  sense  with 
reference  to  the  circumstances  of  the  particular  case.  Thus,  if  the 
accused  is  not  within  military  control,  as  where  he  is  absent  as  a 
deserter,  nothing  more  can  be  required  of  a  commander  than  to  fur- 
nish civil  authority  such  information  of  his  whereabouts  and  the 
prospect  of  his  return  as  may  be  available. 

Wnile  commanding  officers  are  enjoined  to  use  their  utmost  en- 
deavor  in  carrying  out  the  provisions  of  this  law,  a  mere  inadvertent 
neglect  to  lake  some  necessary  step  toward  delivery,  apprehension, 
or  securing  of  the  person  accused  will  not  constitute  an  offense  under 
this  article,  which  contemplates  onlj  refusals  and  willful  neglects 
to  act. 


punitive  articles.  225 

Analysis  and  Proof. 

The  punitive  portion  of  the  article  applies  only  to  officers,  but  the 
obligation  to  deliver  or  assist  in  apprehending  and  securing  rests  on 
all  persons  subject  to  military  law. 

The  article  defines  two  offenses: 

I.  Refusing  or  willfully  neglecting  to  deliver  an  accused  person. 

II.  Refusing  or  willfully  neglecting  to  aid  in  apprehending  and 
securing  an  accused  person. 

The  essentials  of  proof  are  similar  in  both  cases. 


(a)  That  the  accused  was  the  commanding  officer  of  a  certain 
integral  place,  body  of  troops,  or  detachment. 

(b)  That  a  certain  person  under  his  command  stood  accused  of  a 
certain  crime  or  offense,  committed  within  the  geographical  limits 
of  the  States  of  the  Union  and  the  District  of  Columbia. 

(c)  That  application  was  duly  made  to  the  accused  officer  by  a 
person  in  proper  civil  authority — 

1.  To  deliver  the  accused  person  to  the  civil  authorities;  or 

2.  To  aid  the  officers  of  justice  in  apprehending  and  securing,  or 
either,  the  accused  person. 

(d)  Acts  or  omissions  of  the  accused  officer  which  constitute  a 
refusal  or  a  willful  neglect  to  deliver  the  accused  person  or  to  aid 
in  apprehending  or  securing  him. 

Section  V. 
WAR  OFFENSES. 

SEVENTY-FIFTH   ARTICLE. 

425.  Any  officer  or  soldier  who  misbehaves  himself  before  the  enemy,  runs 
away,  or  shamefully  abandons  or  delivers  up  any  fort,  post,  camp,  guard,  or 
other  command  which  it  is  his  duty  to  defend,  or  speaks  words  inducing  others 
to  do  the  like,  or  casts  away  his  arms  or  ammunition,  or  quits  his  post  or  colors 
to  plunder  or  pillage,  or  by  any  means  whatsoever  occasions  false  alarms  in 
camp,  garrison,  <>r  quarters,  Bhall  suffer  death  or  such  other  punishment  as  a 
court-martial  may  direct. 

Definitions  and  Principles. 

Misbehavior  is  by  no  means  confined  to  acts  of  cowardice.     It  is 

a  general  term,  and  as  here  used  it  renders  culpable  under  this 

cle  any  conduct  by  an  officer  or  soldier  not  conformable  to  the 

lard  of  behavior  before  the  enemy  set  by  the  history  of  our  arms. 

Running  away  is  bnt  a  particular  form  of  misbehavior  specifically 

made  punishable  by  this  article. 

53915°— 18 1*3 


226  MANUAL  FOR  COURTS- MARTIAL. 

"The  enemy"'  imports  any  hostile  body  that  our  forces  may  be 
opposing  and  well  includes  a  rebellious  mob,  a  band  of  renegades,  or 
■  tribe  of  India 

ANALT8I8  AND  PbOOF. 

The  article  applies  only  to  officers  and  soldiers.    It  defines  seven 
offenses : 
T.  Misbehavior  before  the  en 
IT.  Running  away  before  the  enemy. 

III.  Shamefully  abandoning  or  delivering  up  any  command. 

IV.  Speaking  words  inducing  others  to  misbehave,  run  away,  or 
abandon  or  deliver  up  any  command. 

V.  Casting  away  arms  or  ammunition. 

VI.  Quitting  post  or  colors  to  plunder  or  pillage. 
AMI.  Occasioning  false  alarms. 

I.  MISBEHAVIOR  BEFORE  TIIE  ENEMY. 

Under  this  clause  may  be  charged  any  act  of  treason,  cowardice., 
insubordination,  or  other  unsoldierly  conduct  committed  in  the  pres- 
ence of  the  enemy. 

PBOOF. 

(a)  That  the  accused  was  serving  in  the  presence  of  an  eneim-. 

(b)  Acts  or  omissions  of  the  accused  not  conformable  to  the  stand- 
ard of  soldierly  conduct  set  by  the  history  of  our  arms. 

n.  RUNNING  AWAY  BEFORE  THE  ENEMY. 

(a)  That  the  accused  was  serving  in  the  presence  of  an  enemy. 

(b)  That  he  misbehaved  himself  by  running  away. 

III.   SHAMEFULLY  ABANDONING  OR  DELIVERING  UP  ANY  COMMAND. 

While  the  word  "abandon"  is  broad  enough  to  include  a  case  in 
which  a  soldier  or  a  subordinate  officer  leaves  a  fort,  post,  guard,  or 
command  which  it  is  his  duty  to  defend,  it  is  probable  that  this  clause 
of  the  article  looks  only  to  offenses  by  the  commanding  officers  of 
such  commands,  and  that  abandonment  by  a  subordinate  should  be 
charged  as  misbehavior  or  running  away. 

The  words  "deliver  up"  arc  synonymous  with  the  word  "sur- 
render." 

The  surrender  or  abandonment  of  a  command  by  an  officer  charged 
with  its  defense  can  only  be  justified  by  the  utmost  necessity  and 
extremity,  such  as  the  exhaustion  of  provisions  or  water,  the  ab- 
sence of  hope  of  relief,  and  the  certainty  or  extreme  probability 


PUNITIVE   ARTICLES.  227 

that  no  further  effort  could  prevent  the  place,  with  its  garrison, 
their  arms,  and  magazines,  from  presently  falling  into  the  hands  ol 
the  enemy.  Unless  such  absolute  necessity  is  shown,  the  conclusion 
must  be  that  the  surrender  or  abandonment  was  shameful  within  the 
meaning  of  this  article. 

An  officer's  duty  to  defend  may  be  imposed  by  orders  or  by  the 
circumstances  in  which  he  finds  himself  at  a  particular  stage  of 
operations;  but  an  officer  will  find  less  justification  in  abandoning  a 
post  that  he  has  been  ordered  to  defend  than  in  abandoning  one  that 
he  has  decided  to  defend.  He  will  have  less  justification  in  deliver- 
ing up  a  post  than  in  abandoning  it,  and  in  delivering  up  a  post  that 
he  has  been  ordered  to  defend  he  will  have  no  justification  at  all 
except  such  as  can  be  found  in  proof  that  no  further  resistance  was 
possible. 


(a)  That  the  accused  was  charged  by  orders  or  by  circumstances 
with  a  duty  to  defend  a  certain  fort,  post,  camp,  guard,  or  other 
command. 

(b)  That  without  justification  he  abandoned  it  or  surrendered  it. 

IV.  SPEAKING    WORDS    INDUCING    OTHERS    TO    MISBEHAVE,   RUN    AWAY,    OR 
TO   ABANDON    OR  DELIVER  UP  ANY   COMMAND. 

The  words  "to  do  the  like"  refer  to  the  offenses  of  misbehavior 
and  running  away,  as  well  as  to  abandoning  or  delivering  up  a 
command. 

The  inducement  contemplated  is  verbal  only,  but  it  may  include 
any  argument,  persuasion,  threat,  language  of  discouragement  or 
alarm,  or  false  or  incorrect  statement  which  may  avail  to  bring  about 
an  unnecessary  surrender,  retreat,  or  any  misbehavior  before  the 
enemy.  The  offense  will  not  be  complete,  however,  unless  the  words 
spoken  do  induce  some  person  other  than  the  accused  to  misbehave, 
run  away,  or  abandon  or  surrender  a  command.  .  It  is  to  be  noted, 
however,  that  speaking  words  whose  natural  tendency  is  to  induce 
others  to  do  anjr  of  these  things  may  in  itself  constitute  misbehavior 
of  the  speaker  within  the  meaning  of  the  article,  although  the  words 
spoken  induce  no  misconduct  on  the  part  of  others. 


(a)  That  some  person  other  than  the  accused  misbehaved  in  the 
presence  of  the  enemy  or  ran  away  or  abandoned  or  delivered  up  any 
command  which  it  was  his  duty  to  defend. 

(b)  Words  spoken  by  the  accused  which  induced  such  action. 


228  MANUAL  FOR  COURTS-MARTIAL. 

V.    CASTING  AWAY  ARMS  OB  AMMUNITION. 


(a)  That  the  accused  cast  away  certain  arms  or  ammunition  as 
ified. 

VI.   QUITTING    POST    OR    COLORS   TO    PLUNDER   OR   PILLAGE. 

The  word  "  post"  includes  any  place  of  duty,  whether  permanently 
or  temporarily  fixed.  The  term  "colors"  was  used  to  include  cases 
where  the  offender's  organization  is  moving,  but  the  words  "quits 
his  post,"  as  here  used,  import  any  unauthorized  leaving  of  that  place 
where  the  accused  should  be. 

In  proving  this  crime  an  intent  to  pillage  or  plunder  must  be 
shown.  The  words  "  to  pillage  or  plunder"  may  be  properly  para- 
phrased "  to  seize  and  appropriate  public  or  private  property."  The 
offense  is  do  less  committed,  though  the  quitting  is  by  quasi  authority, 
as  where  soldiers  quit  the  place  where  they  should  be  to  go  forth 
and  maraud  in  company  with  an  officer  or  noncommissioned  officer. 

The  act  is  complete  when  the  accused  has  left  his  post  with  the 
described  intent,  although  he  may  never  have  consummated  his 
design. 

PROOF. 

(a)  That  the  accused  left  his  post  of  duty. 

(b)  That  the  intention  of  the  accused  in  leaving  was  to  seize  and 
appropriate  private  or  public  property. 

VII.    OCCASIONING    FALSE   ALARMS. 

The  article  is  intended  as  well  to  guard  the  repose  and  tranquillity 
of  troops  as  to  avoid  the  ill  effect  on  morale  which  must  inevitably 
follow  needless  excursions  and  alarms.  The  article  contemplates 
the  spreading  of  false  and  disturbing  rumors  and  reports  as  well 
as  the  needless  giving  of  such  alarm  signals  as  the  beating  of  drums 
and  the  blowing  of  trumpets. 

The  intent  is  immaterial.  If  the  alai  m  was  given,  and  it  appears 
that  there  was  no  material  cause  or  occasion  which  should  reasonably 
justify  a  general  alarm,  the  offense  is  complete. 


(a)  That  an  alarm  was  occasioned  in  a  certain  camp,  garrison,  or 
quarters. 

(b)  Conduct  of  the  accused  which  occasioned  the  alarm. 

(c)  That  there  was  no  reasonable  or  sufficient  justification  in  fact 
for  occasioning  the  alarm. 


PUNITIVE   ARTICLES.  229 

SEVENTY-SIXTII  ARTICLE. 

426.  If  any  commander  of  any  garrison,  fort,  post,  camp,  guard,  or  other  com- 
mand Is  compelled,  by  the  officers  or  soldiers  under  his  command,  to  give  it  up 
to  the  enemy  or  to  abandon  It,  the  officers  or  soldiers  so  offeudiug  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

When  the  surrender  or  abandonment  of  a  command  is  induced 
by  words  spoken,  the  offense  should  be  charged  under  the  seventy- 
fifth  article.  Where  the  surrender  or  abandonment  is  compelled  by 
acts  rather  than  words,  the  charge  should  be  laid  under  the  present 
article. 

The  offense  here  contemplated  is  very  like  that  of  a  mutiny  which 
results  in  the  surrender  or  abandonment  of  any  command,  but,  unlike 
mutiny,  no  concert  of  action  is  an  essential  element  of  this  offense. 
The  offense  is  not  complete  until  the  command  is  abandoned  or  given 
up  to  the  enemy.  The  compulsion  need  not  consist  in  the  use  of 
actual  violence  or  force.  A  refusal  to  obey  orders  or  to  do  duty  or 
to  participate  in  measures  of  defense  would  be  as  effective  compul- 
sion as  if  forcible  restraint  were  resorted  to. 

Analysis  and  Proof. 

The  article  applies  to  officers  and  soldiers. 
The  article  defines  one  crime. 

i.  subordinates  compelling  commander  to  surrender. 


(a)  That  a  certain  commander  has  abandoned  his  command  or 
given  it  up  to  the  enemy. 

(b)  That  the  accused  was  under  the  command  of  this  commander. 
(<?)  Acts  or  omissions  of  the  accused  that  compelled  the  com- 
mander to  abandon  his  command  or  give  it  up  to  the  enemy. 

seventy-seventh  article. 

427.  Any  person  subject  to  military  law  who  makes  known  the  parole  or  coun- 
tersign to  any  person  not  entitled  to  receive  it  according  to  the  rnU-s  and  dis- 
cipline of  war.  or  j,dvcs  a  parole  or  countersiira  different  from  that  which  he 
received,  shall,  if  the  offense  be  committed  in  time  of  war,  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

A  countersign  is  a  word  given  from  the  principal  headquarters 
of  a  command  to  aid  guards  and  sentinels  in  their  scrutiny  of  persons 
who  apply  to  pass  the  lines. 


230  XUAL  FOR  COURTS-MARTIAL. 

A  parole  is  a  word  used  as  a  check  on  the  countersign.  It  is  im- 
part ed  only  to  those  who  are  entitled  to  inspect  guards  and  to  com- 
ma riders  of  guards. 

Anali  sis  \m>  Proof.- 

The  article  applies  to  any  person  subject  to  military  law. 
It  defines  two  offenses: 

I.  Making  known  the  parole  or  countersign. 

II.  Giving  a  parole  or  countersign  different  from  that  received. 

I.    MAKING   KNOWN   THE  PAEOLE  OK   COUNTERSIGN. 

The  class  of  persons  entitled  to  receive  the  countersign  will  expand 
and  contract  under  the  varying  circumstances  of  war.  Who  these 
persons  are  will  be  determined  largely,  in  any  particular  case,  by 
the  general  or  special  orders  under  which  the  accused  was  acting. 
It  is  no  defense  under  the  terms  of  this  law  that  the  accused  did  not 
know  that  the  person  to  whom  he  communicated  the  countersign 
or  parole  was  not  entitled  to  receive  it.  Before  imparting  such  a 
word  it  behooves  a  person  subject  to  military  law  to  determine  at  his 
peril  that  the  person  to  whom  he  presumes  to  make  known  the  word 
is  a  person  authorized  to  receive  it. 

The  intent  or  motive  that  actuated  the  accused  is  immaterial  to  the 
issue  of  guilt,  as  would  also  be  the  circumstance  that  the  imparting 
was  negligent  or  inadvertent.  It  is  likewise  immaterial  whether  the 
accused  had  himself  received  the  password  in  the  regular  course 
of  duty  or  whether  he  obtained  it  in  some  other  way. 


(a)  That  the  accused  made  known  the  countersign  or  parole  to  a 
certain  person,  known  or  unknown. 

(b)  That  the  person  was  not  entitled  to  receive  it. 

II.  GIVING  A  PAROLE  OR   COUNTERSIGN    DIFFERENT   FROM   THAT   RECEIVED. 

The  intent  or  motive  that  actuated  the  accused  is  immaterial  to  the 
issue  of  guilt. 

PROOF. 

(#)   That  the  accused  received  a  certain  countersign  or  parole. 
(b)  That  he  gave  a  parole  or  countersign  different  from  that 
which  he  received. 

SEVENTY-EIGHTH  ARTICLE. 

428.  Any  person  subject  to  military  law  who,  In  time  of  war,  forces  a  safe- 
guard  shall  sutler  death  or  such  other  punishment  as  a  court-martial  may  direct* 


PUNITIVE   ARTICLES.  231 

Definitions  and  Principles. 

A  safeguard  is  a  detachment,  guard,  or  detail  posted  by  a  com- 
mander for  the  purpose  of  protecting  some  person  or  persons,  place, 
or  property.  The  term  also  imports  a  written  order  left  by  a  com- 
mander with  an  enemy  subject  or  posted  upon  enemy  property  for 
the  protection  of  the  individual  or  property  concerned. 

Any  trespass  on  the  protection  of  the  safeguard  will  constitute  an 
offense  under  the  article,  provided  that  the  accused  was  aware  of  the 
existence  of  the  safeguard. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law. 
It  defines  one  offense : 

I.    FORCING   A    SAFEGUARD. 


(a)  That  a  safeguard  had  been  issued  or  posted  for  the  protection 
of  a  certain  person  or  persons,  place,  or  property. 

(I/)  That,  with  knowledge  of  the  safeguard,  or  under  circum- 
stances that  charged  him  with  notice  of  the  safeguard,  the  accused 
trespassed  upon  its  protection. 

SEVENTY-NINTH  ARTICLE. 

429.  All  public  property  taken  from  the  enemy  is  the  property  of  the  United 
States  and  shall  be  secured  for  the  service  of  the  United  States,  and  any  person 
subject  to  military  law  who  neglects  to  secure  such  property  or  is  guilty  of 
wrongful  appropriation  thereof  shall  be  punished  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

Immediately  upon  its  capture  from  the  enemy  public  property 
becomes  the  property  of  the  United  States.  Neither  the  individual 
who  takes  it  nor  any  other  person  has  any  private  right  in  such 
property.  On  the  contrary,  every  person  subject  to  military  law 
has  an  immediate  duty  to  take  such  steps  as  are  within  his  powers 
and  functions  to  secure  such  property  to  the  service  of  the  United 
States  and  to  protect  it  from  destruction  or  loss. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
A.  W.  2. 

It  defines  two  offenses : 

I.  Neglecting  to  secure  captured  public  property. 

II.  Wrongful  appropriation  of  captured  public  property. 


232  MANUAL  FOR   COURTS- MARTIAL. 

T.    NEGLECTING    TO    SECURE    CAPTURED   PUBLIC   PROPERTY. 

The  neglect  will  consist  in  a  failure  to  take  such  steps  as  a  reason- 
ably prudent  man  acting  in  the  capacity  in  which  accused  was  acting 
would  have  taken  in  the  same  or  similar  circumstances  to  secure  the 
property  in  question  to  the  service  of  the  United  States. 


(a)  That  certain  public  property  was  captured  from  the  enemy. 

(b)  That  the  functions  of  the  accused  vested  him  with  a  certain 
power  and  imposed  on  him  a  certain  duty  to  secure  such  property 
to  the  service  of  the  United  States. 

(c)  Acts  or  omissions  of  the  accused  which  evidence  a  failure  to 
take  such  steps  to  secure  the  property  to  the  service  of  the  United 
States  as  would  have  been  taken  by  a  reasonably  prudent  person 
acting  in  the  capacity  in  which  the  accused  was  acting  and  in  the 
same  or  similar  circumstances. 

II.    WRONGFUL   APPROPRIATION    OF    CAPTURED   PUBLIC    PROPERTY. 

Any  unauthorized  and  unjustified  act  in  disposition  of  property 
which  is  inconsistent  with  the  true  owner's  right  of  complete  domin- 
ion over  it  is  a  wrongful  appropriation  of  it.  A  wrongful  appropria- 
tion is  distinguished  from  a  neglect  in  that  it  presumes  some  act 
while  a  neglect  may  consist  solely  in  an  omission. 


(a)  That  certain  public  property  was  captured  from  the  enemy. 

(b)  Acts  of  the  accused  in  disposition  of  the  captured  public  prop- 
erty, inconsistent  with  the  United  States  right  of  complete  dominion 
over  that  property. 

EIGHTIETH  ARTICLE. 

430.  Any  person  subject  to  military  law  who  buys,  sells,  trades,  or  in  any  way 
deals  in  or  disposes  of  captured  or  abandoned  property,  whereby  he  shall 
receive  or  expect  any  profit,  benefit,  or  advantage  to  himself  or  t«>  any  other  per- 
son directly  or  indirectly  connected  with  himself,  or  who  fails, whenever  such 
property  comes  into  his  possession  or  custody  or  within  his  control  to  give  notice 
thereof  to  the  proper  authority  and  to  turn  over  such  property  to  the  proper 
authority  without  delay,  shall,  on  conviction  thereof,  be  punished  by  tine  or 
imprisonment,  or  by  such  other  punishment  as  a  court-martial,  military  com- 
mission, or  other  military  tribunal  may  adjudge,  or  by  any  or  all  of  said 
penalties. 

Definitions  and  Principles. 

This  article  is  broader  than  the  preceding  one  in  the  following 
particulars:  It  protects  abandoned  as  well  as  captured  property  and 
private  as  well  as  public  captured  or  abandoned  property. 


PUNITIVE    ARTICLES.  233 

Unless  the  captured  or  abandoned  property  is  private,  or  unless 
the  acts  charged  fall  within  the  descriptions  of  this  article,  the 
offense  should  be  charged  under  article  79, supra. 

Analysis  and  Proof. 

The  article  applies  to  all  persons  subject  to  military  law.  See 
A.  W.  2. 

It  defines  a  number  of  offenses  which  may  be  treated  as  follows: 

I.  Any  dealing  in  or  disposition  of  captured  or  abandoned  property 
whereby  the  accused  receives  or  expects  to  receive  an  advantage. 

II.  Failure  or  delay  in  reporting  the  receipt  of  and  in  turning 
over  to  proper  authority  captured  or  abandoned  property. 

I.    DEALING    IN    CAPTURED   OR    ABANDONED   PROPERTY. 

This  portion  of  the  article  addresses  itself  to  several  specific  acts 
of  wrongful  dealings  and  looks  especially  to  cases  where,  in- 
stead of  appropriating  the  property  to  his  own  use  in  kind,  the 
accused  in  any  other  way  deals  with  it  to  advantage.  The  article 
prohibits  receipt  as  well  as  disposition  of  captured  or  abandoned 
property  by  barter,  gift,  pledge,  lease,  or  loan.  It  lies  against  the 
destruction  or  abandonment  of  such  property  if  any  of  these  acts  are 
done  in  the  receipt  or  expectation  of  profit,  benefit,  or  advantage  to 
the  actor  or  to  any  other  person  directly  or  indirectly  connected  with 
himself.  The  expectation  of  profit  need  not  be  founded  on  contract ; 
it  is  enough  if  the  prohibited  act  be  done  for  the  purpose,  or  in  the 
hope,  of  benefit  or  advantage,  pecuniary  or  otherwise. 


(a)  That  the  accused  has  disposed  of,  dealt  in,  received,  etc.,  cer- 
tain public  or  private  captured  or  abandoned  property. 

(b)  That  by  so  doing  the  accused  received  or  expected  some 
profit  or  advantage  to  himself  or  to  a  certain  person  connected  in  a 
certain  manner  with  himself. 

II.  FAILURE  OK  DELAY  IN  REPORTING  Till".  RECEIPT  OF  CAPTURED  OR  ABAN- 
DONED PROPERTY. 

Proper  authority  is  any  authority  competent  to  order  the  disposi- 
tion of  the  property'  in  question,  and  the  required  report  should  be 
direct  or  through  such  channels  as  the  customs  and  rules  of  the  service 
prescribe. 

FROor. 

(a)  That  certain  captured  or  abandoned  property  came  into  the 
possession,  custody,  or  control  of  the  accused. 


23-4  MANUAL  FOR  COURTS-MARTIAL. 

(b)  Acts  or  omissions  of  the  accused  which  evidence  his  failure  in 
reporting  the  receipt  of,  and  in  turning  over  without  delay,  such 
property  to  proper  authority. 

EIGHTY-FIRST  ARTICLE. 

431.  Who  my  with  arms,  ammunition,  supplies,  money, 

or  oilier  thing,  or  know Lnglj  protects  or  holds  correspondence  with  or 

gives  Lntellij  Lther  directly  or  Indirectly,  shall  suffer  death, 

or  such  other  punlshmenl  as  a  conrt-martia]  <»r  military  commission  may  dh 

Definitions  and  Pbin<  d 

u  Enemy"  imports  enemy  citizens  as  well  as  soldiers  and  does  not 
restrict  itself  to  the  enemy  government  or  its  army.  All  the  citi- 
zens of  one  belligerent  are  enemies  of  the  Government  and  of  all  the 

citizens  of  the  other. 

Analysis  and  Proof. 

This  article  describes,  in  nearly  every  phrase,  an  overt  act  of 
on,  The  word  whosoever,  as  it  is  here  used,  subjects  to  the  juris- 
diction of  courts-martial  and  military  commissions  all  persons,  either 
military  or  civil,  who,  in  the  theater  of  operations  and  during  the 
continuance  of  war  traffic  with  the  enemy  in  any  of  the  ways  herein 
denouix  ;  <!. 

The  article  defines  four  offenses : 

I.  Relieving  the  enemy. 

IT.  Harboring  or  protecting  the  enemy. 

TIT.  Holding  correspondence  with  the  enemy. 

IV.  Giving  intelligence  to  the  enemy. 

I.    RELIEVING  THE  ENEMY". 

"Relieves,"  in  the  sense  here  used,  is  substantially  equivalent  to 
furnishes  or  supplies.  It  is  immaterial  whether  the  articles  furnished 
are  needed  by  the  enemy  or  whether  the  transaction  is  a  donation 
or  ^ale.  Knowledge  or  intent  is  not  an  essential  in  proof  of  this 
offense. 


(a)  That  the  accused  either  directly  or  indirectly  furnished  the 
enemy  with  a  certain  article  or  articles. 

II.    HARBORING  OR  PROTECTING  THE  ENEMY. 

An  enemy  is  harbored  or  protected  when  he  is  shielded  either 
physically  or  by  use  of  any  artifice,  aid,  or  representation  from  any 
injury  or  misfortune  which  in  the  chance  of  war  mav  befall  him.    It 


PUNITIVE    ARTICLES.  235 

must  appear  that  the  offense  is  knowingly  committed.  But,  as  in  all 
other  cases  where  knowledge  must  be  proved,  circumstances  sufficient 
to  put  a  reasonable  man  on  notice  will  be  sufficient  to  charge  the 
accused  with  notice. 

PROOF. 

(a)  That  the  accused  harbored  or  protected  a  certain  person. 

(b)  That  the  person  so  protected  was  an  enemy,        i  that  the 
accused  had  notice  or  is  chargeable  with  notice  of  this  1 

in.    HOLDING  COItRESPOXDENX'E   WITH  THE  ENE3IY. 

Correspondence  does  not  necessarily  import  a  mutual  exchange  of 
i miration.  The  rule  requires  absolute  nonintercourse,  and  any 
communication,  no  matter  what  may  be  its  tenor  or  intent,  is  here 
denounced.  The  prohibition  lies  against  any  method  of  communica- 
tion whatsoever,  from  the  winking  of  an  eye  to  the  sending  of  script, 
and  the  offense  is  complete  the  moment  the  communication  emanates 
from  the  accused  whether  it  reaches  its  destination  or  not.  The 
words  "directly  or  indirectly"  are  construed  as  applying  to  this 
offense,  and  they  include  within  the  prohibition  communications 
printed  in  newspapers  and  intended  for  the  enemy  and  to  com- 
munications conveyed  to  the  enemy  through  friendly  or  neutral  hands, 
It  is  essential  to  prove  that  the  offense  was  knowingly  committed. 

Citizens  of  neutral  powers  resident  in  or  visiting  invaded  or  occu- 
pied territory  can  claim  no  immunity  from  the  customary  laws  of  war 
which  threaten  punishment  for  communication  with  the  enemy.  The 
offense  of  communicating  with  the  enemy  when  committed  by  a  resi- 
dent of  occupied  territory  constitutes  war  treason  and  is  properly 
charged  under  this  article. 

PROOF. 

(a)  That  the  accused  uttered  a  certain  communication. 

(b)  That  the  communication  was  intended  for  a  certain  person, 
and  that  the  accused  had  notice  or  is  chargeable  with  notice  that  this 
person  was  an  enemy. 

IV.   GIVING  INTIZXIGENCB  TO  THE  ENEMY. 

This  is  a  particular  case  of  corresponding  with  the  enemy  rendered 
more  heinous  by  the  fact  that  the  communication  contains  intelligence 
that  may  be  useful  to  the  enemy  for  any  of  the  multifarious  reasons 
that  make  information  valuable  to  belligerents.  As  in  the  preceding 
case,  knowledge  must  be  proved,  and  it  is  immaterial  to  the  issue  of 
guilt  whether  the  intelligence  was  conveyed  by  direct  or  indirect 
means.  The  word  "  intelligence"  imports  that  the  information  con- 
veyed is  true,  at  least  in  part. 


236  MANUAL  FOR   COURTS-MARTIAL. 


(a)  That  the  accused  knowingly  conveyed  to  the  enemy  certain 
information. 

(h)   That  the  information  was  true,  at  least  in  part. 

EIGHTY-SECOND  ARTICLE. 

432.  Any  person  Who  In  time  of  war  shall  be  fouml  lurking  or  acting  as  a  spy 
la  or  about  any  of  the  fortifications,  posts,  quarters,  or  encampments  of  any 
of  th<>  armies  <>t'  the  United  States,  or  elsewhere,  shall  be  tried  by  a  general 
court-martial  or  by  a  military   commission,  and  shall,  on  conviction  thereof, 

Definitions  and  Principles. 

See  below. 

Analysis  and  Proof. 

The  words  "  any  person  "  bring  within  the  jurisdiction  of  courts- 
martial  and  military  commissions  all  persons  of  whatever  nationality 
or  civil  status  who  may  be  accused  of  the  offense  denounced  by  the 
article. 

The  article  defines  one  crime — being  a  spy. 

I.    BEING  A   SPY. 

The  principal  characteristic  of  this  offense  is  a  clandestine  dissimu- 
lation of  the  true  object  sought,  which  object  is  an  endeavor  to  obtain 
information  with  the  intention  of  communicating  it  to  the  hostile 
party. 

Thus,  soldiers  not  wearing  disguise,  dispatch  riders,  whether  sol- 
diers or  civilians,  and  persons  in  aircraft  who  carry  out  their  mis- 
sions openly  and  who  have  penetrated  hostile  lines  are  not  to  be 
considered  spies,  for  the  reason  that,  while  they  may  have  resorted 
to  concealment,  they  have  practiced  no  dissimulation. 

It  is  necessary  to  prove  an  intent  to  communicate  information  to 
the  hostile  party.  This  intent  will  very  readily  be  presumed  on 
proof  of  a  deceptive  insinuation  of  the  accused  among  our  forces,  but 
this  presumption  may  be  rebutted  by  very  clear  evidence  that  the 
on  had  come  within  the  lines  for  a  comparatively  innocent  pur- 
pose, as  to  visit  his  family  or  that  he  has  assumed  a  disguise  to 
enable  him  to  reach  his  own  lines. 

It  is  not  essential  that  the  accused  obtain  the  information  sought 
or  that  he  communicate  it.  The  offense  is  complete  with  the  lurking 
or  dissimulation  with  intent  to  accomplish  these  objects. 

An  act  of  espionage  completed  by  the  escape  of  the  accused  to  his 
own  lines  can  not  be  the  subject  of  trial  if  the  quondam  spy  is  later 
captured. 

A  person  living  in  occupied  territory  who.  without  dissimulation, 
merely  reports  what  he  sees  or  what  he  hear-  through  agents  to  the 


PUNITIVE   ARTICLES.  237 

enemy  mav  be  charged  under  the  preceding  article  with  communi- 
cating or  giving  intelligence  to  the  enemy,  but  he  may  not  be  charged 
under  this  article  with  being  a  spy. 


(a)  That  the  accused  was  found  at  a  certain  place  within  our  lines, 
acting  clandestinely,  or  under  false  pretenses. 

(b)  That  he  was  obtaining,  or  endeavoring  to  obtain,  information 
with  intent  to  communicate  the  same  to  the  enemy. 

Section  VI. 
MISCELLANEOUS  CRIMES  AND  OFFENSES. 

EIGHTY-THIRD   ARTICLE. 

433.  Any  person  subject  to  military  law  who  willfully,  or  through  neglect, 
Buffers  to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed  of,  any  military 
property  belonging  t"  the  United  States  shall  make  good  the  loss  or  damage 
fer  such  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

The -loss,  etc.,  may  be  said  to  be  willfully  suffered  when  the  accused 
knowing  the  loss,  etc.,  to  be  imminent  or  actually  going  on,  takes  no 
steps  to  prevent  it,  as  where  a  sentinel  seeing  a  small  and  readily 
extmguishable  fire  in  a  stack  of  hay  on  his  post  allows  it  to  burn  up. 
A  suffering  through  neglect  implies  an  omission  to  take  such  meas- 
ures as  were  appropriate  under  the  circumstances  to  prevent  a 
probable  loss,  damage,  etc. 

The  willful  or  neglectful  sufferance  specified  by  the  article  may 
1st  in  a  deliberate  violation  or  positive  disregard  of  some  specific 
injunction  of  law,  regulations,  or  orders;  or  it  may  be  evidenced  by 
such  circumstances  as  a  reckless  or  unwarranted  personal  use  of  the 
property;  causing  or  allowing  it  to  remain  exposed  to  the  weather, 
insecurely  housed  or  not  guarded;  permitting  it  to  be  consumed, 
wasted,  or  injured  by  other  persons;  loaning  it  to  an  irresponsible 
person  by  wdiom  it  is  damaged,  etc.     (Winthrop,  p.  862.) 

Analysis   and  Proof. 

The  article  applies  to  any  one  .subject  to  military  law.  See 
article  2. 

The  article  embraces  eight  offenses,  indicated  by  the  following 
liagram : 

Any  mill 

£bM~y       1 

military    f  ,or       ,        \ 

law  who     j  Through  neglect  j 


Lost, 

Spoiled, 

Damaged, 

or 
Wrongfully  die] 


erty  be- 
longing to 
the  United 

States. 


238 


MANUAL  FOB  COUBTS-MAETTAL. 


offenses  may  be  briefly  treated  under  the  heading  "  Suffering 
military  property  t<»  !'(•  lost,  etc. " 

I.    SUFFERING    BIILITAItY   PROPERTY  TO    BE   LOST,   ETC. 

(<  i  That  certain  military  property  was  lost,  spoiled,  damaged, 
or  wrongfully  disposed  of  in  the  manner  alleged. 

(M  That  such  loss,  spoiling,  damage,  or  wrongful  disposition 
was  suffered  by  the  accused  through  a  certain  omission  of  duty  on  his 

part. 

(c)  That  such  omission  was  willful,  or  negligent,  as  alleged. 

(d)  The  value  of  the  property,  as  all. 

EIGHTY-FOURTH  ARTICLE. 

434.  Any  soldier  who  sells  or  wrongfully  disposes  of  or  willfully  or  through 
neglect,  injures  or  loses  any  horse,   arms,   ammunition,   aeeouterments,   equip- 
.  clothing,  or  other  property  Issued  for  use  in  the  military  service,  shall  be 
punished  as  a  court-marl  ial  may  direct. 


Definitions  and  Principlks. 

See  definitions  under  A.  W.  80,  pages  232,  233. 

Aeeouterments  applies  in  the  military  sense  to  those  parts  of  the 
soldier's    equipment    which   are    issued   by   the   Ordnance    Depart- 
ment    *     *     *     in  connection  with  his  arms  and  ammunition,  si 
for  example,  as  belts  and  cartridge  pouches.     (Digest,  p.  lOS-i.) 

Clothing  includes  all  articles  of  clothing  whether  issued  under  s 
clothing  allowance  or  otherwise,  for  example,  overcoats  and  sweater? 
as  now  issued  are  articles  of  clothing.  That  the  property  sold,  dis- 
posed of,  lost,  or  injured  was  issued  to  someone  other  than  the  ac- 
cused is  immaterial ;  the  article  applies  to  any  property  issued  for 
use  in  the  military  service. 

Analysis  and  Proof. 

This  article  applies  to  enlisted  men  only. 

The  article  defines  a  number  of  offenses,  indicated  by  the  following 
diagram: 


Sells 

or 

Wrongfully  disposes  of 

Any  soldier  win. 

or 

Willfully 

'  Injures 

or 

or 

Through  neglect 

Any 


Horse, 

Arms, 

Ammunition, 

Accoutei 

Equipment, 

CI. .tiling, 

or 
other  property 


Issued    for 
use  in  the 

military 
service. 


PUNITIVE   ARTICLES.  239 

These  offenses  may  be  treated  under  the  following  heads: 

I.  Selling  or  wrongfully  disposing  of  military  property. 

II.  Willfully    or   through   neglect   injuring    or    losing    military 
property. 

I.  SELLING  OR  WRONGFULLY  DISPOSING  OF  MILITARY  PBQPERTY. 

See  matter  under  A.  W.  80,  Item  I. 


(a)  That  the  accused  soldier  sold  or  otherwise  disposed  of  cer- 
tain property  in  the  manner  alleged. 

(b)  That  such  disposition  was  wrongful. 

(c)  That  the  property  was  issued  for  use  in  the  military  service. 

(d)  The  value  of  the  property  as  alleged. 

n.    WILLFULLY    OR    THROUGH    NEGLECT    INJURING    OR    LOSING    MILITARY 

PROPERTY. 

A  wtUftiZ  injury  or  loss  is  one  that  is  intentionally  occasioned.  A 
loss  or  injury  is  occasioned  through  neglect  when  it  is  the  result 
of  a  want  of  such  attention  to  the  nature  or  probable  consequences  of 
an  act  or  omission  as  was  appropriate  under  the  circumstances. 

Accouterments  applies  in  the  military  sense  to  those  parts  of  the 
soldier's  equipment  which  are  issued  by  the  Ordnance  Depart- 
ment in  connection  with  his  arms  and  ammunition,  such  for  example 
as  belts  and  cartridge  pouches.    (Digest,  p.  1084.) 

\mg  includes  oil  articles  of  clothing,  whether  issued  under 
a  clothing  allowance  or  otherwise;  for  example,  overcoats  and 
sweaters  as  now  issued  are  articles  of  clothing.  That  the  property 
sold,  disposed  of,  lost,  or  injured  was  issued  to  some  one  other  than 
the  accused  is  immaterial;  the  article  applies  to  any  property  issued 
for  use  in  the  miiitarv  service. 


That  certain  property  was  injured  in  a  certain  way  or  lost, 
as  alleged. 

(  b )   That  such  property  was  issued  for  use  in  the  military  service. 

(c)  That  such  injury  or  loss  was  willfully  caused  by  the  accused 
in  a  certain  manner,  as  alleged;  or  that  such  injury  or  loss  was  the 
result  of  certain  neglect  on  the  part  of  the  accused. 

(d)  The  value  of  the  property,  as  alleged. 

EIGHTY-FIFTH  ARTICLE. 

435.  Any  officer  who  is  found  drunk  on  duty  shall,  if  iho  offense  be  committed 
In  time  of  war,  he  dismissed  from  the  service  and  Buffer  bui  b  other  punishment 

as  a  court-martial  may  direct:  and  if  the  offense  be  committed  in  time  of  peace, 


240  MANUAL   FOR    C<  TKTS  MARTIAL. 

he  shall  be  punished  as  :i  court-martial  may  direct.  Any  person  subject  to  mili- 
tary law,  except  an  officer,  who  is  found  drunk  on  duty  shall  be  punished  as  a 
court-martial  may  direct 

I h  finitions  and  Pw n<  rpi  bs. 

The  article  does  not  require  that  the  accused  shall  have  become 
(hunk,  but  that  he  shall  have  been  found,  i.  e.,  discovered  or  per- 
ceived, to  be  drunk,  when  on  duty,  and  it  does  not  therefore  neces- 
sarily follow  that  his  drunkenness  shall  have  commenced  after  the 
duty  has  been  entered  upon.  To  permit  an  officer  or  soldier,  when 
tted,  to  go  upon  any  duty  of  importance,  while  in  general  in- 
volving an  injustice  to  the  individual,  is  also  a  reprehensible  act  and 
o  military  offense  in  the  superior  who  knowingly  suffers  it.  But  the 
fact  that  he  was  already  intoxicated  can  not  render  the  party  himself 
any  the  less  legally  liable  under  the  article,  if,  after  having  entered 
upon  the  duty,  his  intoxication  continues  and  his  condition  is  de- 
tected. But,  on  the  other  hand,  a  soldier  (or  officer), is  not  "  found" 
drunk  in  the  sense  of  the  article,  if  he  is  simply  discovered  to  be 
drunk  when  ordered,  or  otherwise  required,  to  go  upon  the  duty,  upon 
which,  because  of  his  condition,  he  does  not  enter  at  all.  (Winthrop, 
pp.  9M,  945.) 

Whether  the  drunkenness  was  caused  by  Liquor  or  drugs  is  imma- 
terial, but  where  the  sole  cause  was  a  liquor  or  drug  duly  prescribed 
by  a  medical  officer  of  the  Army  or  a  civil  physician  and  taken  in 
good  faith  according  to  the  prescription  no  offense  is  committed. 

The  fact  that  the  accused,  owing  to  an  unsuspected  susceptibility, 
permanent  or  temporary,  was  made  drunk  by  indulging  in  a  very 
small  amount  of  intoxicant  is  not  a  defense. 

Any  intoxication  which  is  sufficient  to  sensibly  impair  the  rational 
and  full  exercise  of  the  mental  and  physical  faculties  is  drunkenness 
within  the  meaning  of  the  article.     (Digest,  p.  540.) 

Where  the  accused  is  charged  under  this  article,  a  conviction  under 
the  general  article  of  being  under  the  influence  of  liquor  is  wholly 
inconsistent  if  he  was  found  in  such  condition  while  on  duty.  The 
le  requires  no  particular  degree  of  drunkenness,  and  if  the  ac- 
m.  ed  was  found  so  far  under  the  influence  of  liquor  as  to  be  punish- 
able at  all  he  was  found  drunk  on  duty  within  the  meaning  of  this 
article. 

The  term  '•duty  '"  as  used  in  this  article,  means  of  course  military 
duty.  But — it  is  important  to  note — every  duty  which  an  officer  or 
soldier  is  legally  required,  by  superior  military  authority,  to  execute, 
and  for  the  proper  execution  of  which  he  is  answerable  to  such  au- 
thority, is  ;  .   a  military  duty.     (Winthrop,  p.  049.) 


PUNITIVE  241 

The  words  "on  duly."  as  used  in  this  article,  have  also  received  an 
authoritative  interpretation.  As  applied  to  the  commanding  officer 
of  a  post,  or  oi'  an  organization,  or  detachment  in  the  field,  the  senior 
officer  present,  in  the  actual  exercise  of  command,  is  constantly  on 
duty;  the  term  being  here  used  in  contradistinction  to  "on  leave."  In 
the  rase  of  other  officers,  or  of  enlisted  men,  the  term  "  on  duty  "  has 
been  held  to  relate  to  the  performance  of  duties  of  routine  or  detail, 
in  garrison  or  in  the  field;  the  words  "off  duty."'  in  respect  to  such 
persons,  relating  to  such  periods  or  occasions  when,  no  duty  being 
required  of  them  by  orders  or  regulations,  officers  and  men  are  said 
to  occupy  that  status  of  leisure  known  to  the  service  as  being  "off 
dm  v.-     (Davis,  p.  408.) 

In  time  of  war  and  in  a  region  of  active  hostilities  the  circum- 
stances are  often  such  that  all  members  of  a  command  may  properly 
be  considered  as  being  continuously  on  duty  within  the  meaning  of 
this  article. 

A  medical  officer  of  a  post,  where  there  are  constantly  sick  persons 
under  his  charge  who  may  at  any  moment  require  his  attendance, 
may,  generally  speaking,  be  deemed  to  be  "  on  duty  "  in  the  sense  of 
the  article  during  the  whole  day  and  not  merely  during  the  hours 
regularly  occupied  by  sick  call,  visiting  the  sick,  or  attending  hos- 
pital. If  found  drunk  at  any  other  hour  lie  may  in  general  be 
charged  with  an  offense  under  this  article.     (Digest,  p.  127. 1 

So,  also,  an  officer  of  the  day  and  members  of  the  guard  are  on 
duty  during  their  entire  tour  within  the  meaning  of  this  article, 
but  a  sentinel  found  drunk  on  post  is  chargeable  under  the  next  suc- 
ceeding article.  The  article  also  applies  to  cases  where  the  duty 
being  performed  is  merely  a  preliminary  one,  such  as  a  reporting 
for  inspection  by  a  soldier  designated  for  guard  or  a  reporting  under 
orders  for  duty  at  a  post  to  the  commanding  officer. 

The  offense  of  a  person  who  absents  himself  from  his  duty  and  is 
found  drunk  while  so  absent,  or  wdio  is  relieved  from  duty  at  a  post 
and  ordered  to  remain  there  to  await  orders,  and  is  found  drunk 
during  such  status,  is  not  chargeable  under  this  article. 

An  UiYSiS   ami   Proof. 

This  article   applies  to  any   person   subject   to  military   law.     See 
artic] 
The  article  defi]  flense,  namely,  being  found  drunk  on  duty. 

I.    BEING    FOUND    DRUNK    ON    DUTY. 


(a)  That  the  accused  was  on  a  certain  duty,  as  all  ged. 

(M    That  he  was  found  drunk  while  on  BUCb  duty. 
— 17 


242  MANUAL  FOE  COURTS-MARTIAL. 

EIGHTY-SIXTH  ARTICLE. 

436.  Any  sentinel  who  i>  found  drunk  or  sleeping  upon  lii-<  post,  or  who  leaves 

it  before  he  Is  regularly  relieved,  shall,  If  the  offense  be  committed  in  time  of 

war.  suffer  death  or  such  other  punlshmenl  as  a  court-martial  may  direct;  and 

offense  be  committed  In  time  of  peace,  be  shall  Buffer  any  punishment, 

except  death,  that  a  court-martial  may  direct 

Definitions  and  Principles. 

As  to  drunkenness,  see  matter  under  eighty-fifth  article  page  240. 

The  term  "  sentinel  "  does  not  include  a  watchmcun. 

A  sentinel  is  on  post  within  the  meaning  of  this  article  not  only 
when  he  is  walking  a  duly  designated  sentinel's  post,  as  is  ordinarily 
the  case  in  garrison,  but  also  "when  be  may  be  stationed  in  observa- 
tion against  the  approach  of  an  enemy,  or  on  post  to  maintain  in- 
ternal discipline,  or  to  guard  stores,  or  to  guard  prisoners  while  in 
confinement  or  at  work."'    (Digest,  p.  128.) 

The  fact  that  the  sentinel  was  not  posted  in  the  regular  way  is  not 
a  defense. 

Analysis  and  Proof. 

The  article  applies  only  to  sentinels. 
The  article  defines  three  offenses,  namely: 

I.  Being  found  drunk  on  post. 

II.  Being  found  sleeping  on  post. 

III.  Leaving  post  before  being  relieved. 

T.    BEING  FOUND  DRUNK  ON  POST. 

As  to  drunkenness,  see  matter  under  eighty-fifth  article,  page  240. 

PKOOF. 

(a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
post,  as  alleged. 

(0)   That  he  was  found  drunk  while  on  such  post. 

II.    IJEING  FOUND  SLEEPING  ON  FOST. 

The  fact  that  the  accused  had  been  previously  overtaxed  by  exces- 
sive guard  duty  is  not  a  defense,  although  evidence  to  that  effect  may 
be  recei ,  ed  in  extenuation  of  the  offense. 


(a)    That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
-   alleged. 

(  h )  That  he  was  found  sleeping  while  on  such  post. 

III.    LEAVING  FOST  BEFORE  BEING  RELIEVED. 

The  offense  of  leaving  post  is  not  committed  when  a  sentinel  goes 
an  immaterial  distance  from  the  point,  path,  area,  or  object  which 
was  presci  Lbed  as  his  post. 


PUNITIVE    ARTICLES.  243 


(<?)   That  the  accused  soldier  was  posted  as  a  sentinel  on  a  certain 
post,  as  alleged. 

(b)   That  he  left  such  post  without  being  regularly  relieved. 

EIGHTY-SEVENTH  ARTICLE. 

437.  Any  officer  commanding  in  any  garrison,  fort,  barracks,  camp,  or  other 
place  where  troops  of  the  United  States  may  be  serving  who,  for  his  private 
advantage,  lays  any  duty  or  imposition  upon  or  is  interested  in  the  sale  of  any 
victuals  or  other  necessaries  of  life  brought  into  such  garrison,  fort,  barracks, 
camp,  or  other  place  for  the  use  of  the  troops,  shall  be  dismissed  from  the 
service  and  suffer  such  other  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

Analysis  and  Proof. 

This  article  applies  to  commanding  officers  only. 
The  article  defines  offenses  which  may  be  treated  under  two  heads, 
as  follows: 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in  of  victuals, 
etc. 

II.  Being  interested  in  the  sale  of  victuals,  etc. 

I.  LAYING  A  DUTY  OR  IMPOSITION  UPON   THE  BRINGING  IN  OF 
VICTUALS,    ETC. 

A  commanding  officer  who  should  prohibit  the  entry  into  his  camp 
of  peddlers  of  vegetables  for  the  troops,  permitting  it  only  if  the 
peddlers  pay  him  for  the  privilege,  would  be  guilty  of  this  offense 
whether  any  money  was  actually  paid  or  not. 


(a)  That  the  accused  officer  was  in  command  of  a  certain  place 
where  troops  of  the  United  States  were  serving,  as  alleged. 

(b)  That  he  laid  a  certain  duty  or  imposition  upon  the  bringing 
into  such  command  of  victuals  or  other  necessaries  of  life  for  the 
use  of  such  troops,  as  alleged. 

(c)  That  such  duty  or  imposition  was  laid  for  his  own  private 
advantage. 

II.   BEING  INTERESTED  IN    THE   SALE   OF   >'MTl   .M.S.   ETC. 

The  interest  need  not  be  a  direct  interest,  such  as  that  attaching  tc 
a  partnership,  or  part  ownership,  of  the  articles  introduced  for 
but  may  be  one  of  an  indirect  or  contingent  character,  is,  for  in 
stance,  an  interest  arising  from  an  agreement  or  mutual  understand- 


244  MANUAL  FOR  00TJBTS-MABT1AL, 

bag  between  the  officer  and  the  owner  of  the  supplies  that  the  former 
shall  receive  a  percentage  on  the  Bales,  <>r  a  commission  on  all  profits 
above  a  certain  sum,  or  some  present  of  money  or  goods  in  return  for 
bis  sanction  of  the  speculation  or  promotion  of  the  business.  (Win- 
throp,  p.  STO.) 

Thus  a  commanding  officer  commits  this  offense  when  he  agrees 
with  a  peddler  to  exclude  others  in  consideration  of  -Mine  advantage 
to  himself. 

A  commanding  officer  might  become  interested  in  the  sale  of  ar- 
ticles by  the  post  exchange  within  the  meaning  of  this  article. 


(a)  That  the  accused  officer  was  in  command  of  a  certain  place 
where  troops  of  the  United  States  were  serving,  as  alleged. 

(b)  That  he  became  pecuniarily  interested  in  a  certain  way  in  the 
sale  of  certain  victuals  or  other  necessaries  of  life  to  such  troops, 
as  alleged. 

(c)  That  he  so  became  interested  for  his  own  private  advantage. 

EIGHTY-EIGHTH  ARTICLE. 

438.  Any  person  subject  to  military  law  who  abuses,  intimidates,  (iocs  violence 
to,  or  wrongfully  interferes  with  any  person  bringing  provisions,  supplies,  or 
other  necessaries  t<i  the  camp,  garrison,  or  quarters  of  the  forces  of  the  United 
States  shall  suffer  such  punishmenl  as  :t  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

This  article  in  no  way  interferes  with  the  lawful  powers  of  a 
military  commander  to  exclude  persons  or  supplies  inimical  to  health 
or  good  order  of  his  command.  The  purpose  of  this  article  is  to 
prevent  the  diminishing  or  cutting  off  of  the  supply  of  necessaries 
brought  in  by  private  persons  through  any  abuse,  intimidation, 
doing  violence  to,  or  wrongfully  interfering  with  such  persons.  The 
prohibition  against  interference,  etc.,  therefore,  applies  not  only 
while  such  persons  are  coming  to  the  camp,  etc.,  but  also  while  they 
remain  and  during  their  return  therefrom. 

The  wrongful  interference  contemplated  would  include  not  only 

any   wrongful   act  not  included  in  the  terms  "abuse,  etc.,"  which 

prevents,  obstructs,  or  delays  the  movements  of  the  person,  but  any 

wrongful  interference  with  the  supplies  themselves,  such  as  stealing 

-troying  them. 

Analysis   \m>  Proof. 

This  article  applies  to  any  person  subject  to  military  law.  The 
article  defines  a  number  of  offenses  which  may  be  briefly  treated 
under  one  head,  as  follows: 


PUNITIVE    LRTK  245 

I,  INTIMIDATING,    DOING    VIOl  ••    OH    WRONGFULLY    INTBBPBBING 

WITH    PEB80N8    I  RI2 


(a)  That  a  certain  person  named  or  described  was  bringing  pro- 
visions, supplies,  or  other  necessaries  to  a  certain  camp,  garrison,  or 
quarters  of  the  forces  of  the  United  States,  as  alleged. 

(h)  That  the  accused  abused,  intimidated,  did  violence  to,  or 
wrongfully  interfered  with  such  person  while  so  engaged  and  in 
the  manner  alleged. 

EIGHTY-NINTH  ARTICLE. 

439.  All  persons  subject  to  military  law  are  to  behave  themselves  orderly  in 
quarters,  garrison,  camp,  and  on  the  march;  and  any  person  subject  to  military 
hiw  who  commits  any  waste  or  spoil,  or  willfully  destroys  any  property  what- 
r  (unless  by  order  of  his  commanding  officer),  or  commits  any  kind  of 
depredation  or  riot  shall  be  punished  as  a  court-martial  may  direct.  Any 
commanding  officer  who,  upon  complaint  made  to  him,  refuses  or  omits  to  see 
reparation  made  to  the  party  Injured,  in  so  far  as  the  offender's  pay  shall  go 
toward  such  reparation,  as  provided  for  in  article  one  hundred  and  live,  shall 
be  dismissed  from  the  service,  or  otherwise  punished,  as  a  court-martial  may 
direct 

Definitions  and  Principles. 

See  the  terms  of  the  article  and  the  definitions  under  the  respective 
offenses  as  given  below. 

Analysis  and  Proof. 

This  article  divides  itself  into  two  parts,  one  embracing  all  persons 
subject  to  military  law.  and  the  other  commanding  officers  only. 

The  article  defines  a  number  of  offenses  which  may  be  briefly 
treated  under  the  following  headings: 

I.  Committing  any  waste  or  spoil. 

IT.  Willfully  destroying  property. 

III.  Committing  depredation  or  riot 

IV.  Refusing  or  omitting  to  see  reparation  made. 

I.  COMMTTTINO    ANY    WASTE   OB    SPOIL. 

The  ten  "  or  "  spoil  "  as  used  in  this  article  refer  to  such 

arts  of  voluntary  destruction  of  or  permanent  damage  to  real  prop- 
erty as  burning  down  buildings,  tearing  down  fences,  cutting  down 
shade  or  fruit  trees,  and  the  like. 

psoor. 
(a)  That  the  accused  bring  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  th  ommitted  waste  or  spoil  on  certain 

property  in  the  manner  allege. I. 

{b)   That  such  aets  were  not  ordered  by  his  commanding  officer.  ! 


2-46  1LLNTAL   rOl    C0UET8- 

11.   WIM  i  I  I.I  V   DBA  R0PSRT1  . 

To  be  destroyed  it   is  not   accessary  that  the  property  be  coni- 
ely  demolished  or  annihilated.     It  is  sufficient  it*  it  is  so  fur 
injured  as  to  be  useless  for  the  purpose  for  which  it  was  intended. 


(a)  That  the  accused  being  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  the  march,  destroyed  certain  property,  as 
alleged. 

(6)  That  such  destruction  was  willful  and  was  not  ordered  by  his 
commanding  officer. 

III.    COMMITTING    l'!.li:i.l'A'J  1<  >X    OK   RIOT. 

The  terms  "any  kind  of  depredation  or  riot,"  include  plundering, 
pillaging,  robbing,  and  any  other  willful  damage  to  property  not 
included  in  the  preceding  specific  terms  of  the  article.  Injuries  to 
persons  are  not  made  punishable  by  this  article. 


(a)  That  the  accused  being  with  a  certain  command  in  quarters, 
camp,  garrison,  or  on  the  march,  committed  certain  acts  of  depreda- 
tion on  certain  property,  or  certain  acts  of  rioting  resulting  in  injury 
to  certain  property,  as  alleged. 

IV.   REFUSING  OR  OMITTING  TO  SEE  REPARATION   MADE. 

Refusing  to  entertain  a  proper  complaint  at  all;  refusing  or  omit- 
ting to  convene  a  board  for  the  assessment  of  damage;  or  to  act  on 
such  proceedings,  or  to  direct  the  proper  stoppages  are  instances  of 
this  oll'ense. 


(a)   That  the  accused  was  the  commanding  officer  of  a  certain  com- 
mand in  quarters,  garrison,  camp,  or  on  the  march,  as  alleged. 

(&)  That  a  complaint  was  duly  made  to  him  by  a  certain  | 
of  damage  to  or  loss  of  certain  property  occasioned  by  troops  of  the 
Muniand.  as  alleged, 
I  That  the  accused  either  refused  to  see  reparation  made  or 
omitted  in  the  maimer  alleged  to  see  reparation  made  to  the  party 
injured  in  so  far  as  the  offender's  pay  would  go  toward  such  repara- 
tion. 

NINETIETH    ARTICLE. 

440.  NO  person  subjecl  t<>  military  law  shall  use  any  reproachful    »  provoking 
ties  or  gestures  (<>  another;  and  any  person  subject  to  military  law  who 
offends  against    Hi"  provisions  <»r  this  article  shall  be  punished  as  a  court- 
martiaJ  dm; 


PUNITIVE   ARTICLES.  247 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

The  article  is  intended  to  prevent  what  frequently  are  the  first 
steps  toward  quarrels,  fights,  or  serious  offenses. 

Reproachful  speeches  and  gestures  are  such  as  involve  censorious 
comment  on  the  actions  or  opinions  of  another.  Provoking  speeches 
and  gestur.es  are  such  as  tend  to  exasperate  or  to  arouse  anger  and 
resentment. 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law.  The 
irticle  defines  offenses  which  may  be  treated  under  one  heading,  as 
follows : 

I.  USING  PROVOKING  SPEECHES  OR  GESTURES. 


(a)  That  the  accused  used  certain  speeches  or  gestures  to  a  certain 
person,  as  alleged. 

(b)  That  the  speeches  or  gestures  were  reproachful  or  provoking. 

(c)  That  the  person  to  whom  such  speeches  or  gestures  were  ad- 
dressed is  in  one  of  the  classes  of  persons  subject  to  military  law. 

NINETY-FIRST  ARTICLE. 

441.  Any  person  subject  to  military  law  who  fights  or  promotes  or  is  concerned 
In  or  connives  at  fighting  a  duel,  or  who  having  knowledge  of  a  challenge  sent 
or  about  to  be. sent  fails  to  report  the  fact  promptly  to  the  proper  authority 
shall,  if  an  officer,  be  dismissed  from  the  service  or  suffer  such  other  punish- 
ment as  a  court-martial  may  direct ;  and  if  any  other  person  subject  to  military 
law.  shall  suffer  such  punishment  as  a  court-martial  may  direct. 

Definitions  and  Principles. 

See  the  terms  of  the  article. 

A   duel  is  a   concerted  fight  between  two   persons  with   deadly 

weapons,  the  object  of  which  is  claimed  to  be  the  satisfaction  of 

wounded  honor.     (Wharton,  vol.  2,  p.  555.) 

[Note.— The  offenses  made  punishable  by  this  article  are  of  such  infrequent 
occurrence  that  it  is  considered  inadvisable  to  comment  more  fully  upon  them. 
In  a  case  of  doubt,  works  on  military  law  should  be  consulted.] 

Analysis  and  Proof. 

This  article  applies  to  any  person  subject  to  military  law. 
The  article  embraces  a  number  of  offenses  which  may  be  briefly 
treated  under  the  following  headil 

I.  Fighting  or  promoting  a  duel. 

II.  Being  concerned  in  or  conniving  at  fighting  a  duel. 

III.  Failing  to  report  knowledge  of  a  challenge. 


248  MANUAL  FOB   OOUETS-MABTIAL. 

l.    !    oilTING   OB   PROMOTING    A    DI  EL. 

1-  i irl i t i 1 1 *_r  or  promoting  a  duel  would  include  such  acts  as  the  send- 
ing, giving,  or  accepting  a  challenge,  or  the  carrying  of  a  challenge 
or  acceptance,  the  arrangement  of  the  preliminaries,  and,  in  general, 
any  ad  by  which  a  duel  is  intentionally  furthered,  encouraged,  or 
incited,  whether  the  duel  takes  place  or  not. 


(a)  That  the  accused  fought  a  duel  with  a  certain  person  as 
alleged,  or  that  he  promoted  a  duel  between  certain  persons  in  the 
manner  alleged. 

II.    BEING    CONCERNED   IN    OR    CONNIVING    AT   FIGHTING   A   DUEL. 

Being  concerned  in  or  conniving  at  fighting  a  duel  would  include 
the  being  present  thereat  in  some  capacity  other  than  a  principal,  as 
in  the  case  of  seconds  and  doctors. 


(a)  That  the  accused  was  concerned  in  or  connived  at  fighting  a 
certain  duel  in  the  maimer  alleged. 

DJ.   FAILING  TO  REPORT  KNOWLEDGE  OF  A   CHALLENGE. 

A  challenge  is  a  written  or  verbal  demand,  request,  or  invitation 
to  another  to  fight  a  duel. 

To  constitute  a  challenge  no  particular  form  is  necessary.  It  'v 
enough  if  what  was  sent  or  about  to  be  sent,  considered  in  connec- 
tion with  the  circumstances,  amounts  to  such  a  demand,  request  or 
invitation.  However,  an  effort  to  provoke  a  challenge  or  an  an- 
nouncement of  a  willingness  to  accept  one  is  not  a  challenge. 

As  to  knowledge,  see  matter  under  fifty-fifth  article. 


(a)  That  the  accused  knew  that  a  certain  challenge  had  been  sent, 
or  was  about  to  be  sent,  as  alleged. 

(&)  That  he  either  did  not  report  the  fact  to  the  proper  authority 
at  all,  or  that  he  unnecessarily  delayed  making  such  report,  as  alleged. 

NINETY-SECOND  ARTICLE. 

442.  Any  person  subject  i<«  military  law  who  commits  murder  or  rape  shall 
Buffer  death  or  Imprisonment   for  life,  as  a  court-martial  may  direct;  but  no 

a  si,;, ii  i„.  tried  by  court-martial  for  murder  or  rape  committed  within 
the  geographical  limits  of  the  stales  of  the  Union  and  the  District  <»f  Columbia 

in  time  of  peace. 


PUNITIVE   AETICLES.  249 

Definitions  and  Principles. 

See  the  terms  of  the  article  and  the  matter  under  the  treatment  of 
the  several  offenses  defined  therein. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  Sec 
article  2. 

The  article  defines  two  offenses,  as  follows: 

I.  Murder. 

II.  Rape. 

I.    MURDER. 

Murder  is  the  unlawful  killing  of  a  human  being  with  malice 
aforethought.     (Federal  Penal  Code,  1910,  sec.  273.) 

"  Unlawfully  "  as  used  in  the  definition  of  murder  means  without 
legal  justification  or  excuse. 

A  homicide  done  in  the  proper  performance  of  a  legal  duty  is 
justifiable.  Thus,  executing  a  person  pursuant  to  a  sentence  of 
death ;  killing  in  suppressing  a  mutiny  or  in  preventing  the  escape 
of  a  prisoner  where  no  other  available  means  are  adequate;  killing 
an  enemy  in  battle;  and  killing  to  prevent  the  commission  of  a 
felony  attempted  by  force  or  surprise,  such  as  murder,  burglary,  or 
arson,  are  cases  of  justifiable  homicide. 

The  right  and  duty  of  a  sentinel  over  a  prisoner  in  his  charge  in 
case  of  attempted  escape  is  discussed  in  the  Manual  of  Interior  Guard 
Duty,  1914. 

This  right  and  duty  extends  to  other  members  of  the  guard  whose 
duties  include  the  safe-keeping  of  such  prisoner.  (Digest,  1912, 
p.  583.) 

The  same  principles  apply  to  the  arrest  of  a  soldier  by  officers  or 
soldiers  authorized  to  make  the  particular  arrest. 

A  party  of  soldiers  left  their  camp  at  night  in  time  of  war  without 
leave  contrary  to  positive  orders  and  proceeded  to  a  neighboring 
town,  where  they  created  a  disturbance.  Their  commanding  officer 
followed  them,  found  them  in  a  saloon,  and  was  about  to  arrest 
them,  when  they  broke  from  him,  and  knowing  who  he  was  disre- 
garded his  order  to  halt  and  ran  away  from  him.  He  repeated  his 
order,  and  not  being  obeyed  and  having  no  other  means  of  detaining 
them,  fired  upon  them  while  fleeing  with  a  pistol,  and  shot  and  killed 
one  of  them.  Held,  that  he  did  not  use  undue  force  in  endeavoring 
to  maintain  discipline  and  to  arrest  the  offenders  whom  he  was  en- 
deavoring to  return  to  their  stations,  and  that  he  was  not  guilty  of  an 
offense  requiring  punishment,  and  that  his  conduct  under  the  circum- 
stances in  which  he  was  placed  was  justified.     (Digest,  p.  480.) 


250  MANUAL  FOR  COURTS  MARTIAL. 

The  general  rule  is  that  "The  acts  of  a  subordinate  officer  or  sol- 
dier, in  compliance  with  his  supposed  duly,  or  of  superior  orders, 
are  justifiable,  and  lie  will  lie  protected  against  the  consequences, 
unless  they  are  manifestly  beyond  the  scope  of  his  authority,  and 
such  that  a  man  of  ordinary  sense  and  understanding  would  know  to 
be  illegal,  where  he  acts  in  good  faith  and  without  malice."  (Whar- 
ton on  Homicide,  3d  ed.,  p.  731.) 

The  foregoing  principles  should  not  be  construed  as  conferring 
immunity  on  an  officer  or  soldier  who  willfully  or  through  culpable 
negligence  does  acts  endangering  the  lives  of  innocent  third  parties 
in  the.  discharge  of  his  duiy  t<>  prevent  esca'pe  or  effect  an  arrest 

But  where  a  guard  fired  on  a  prisoner  fleeing  down  a  public  street 
which  was  apparently  clear,  under  circumstances  that  would  have 
justified  the  homicide  of  the  prisoner,  and  thereby  accidentally  killed 
a  young  woman  whom  he  did  not  see  at  the  time  he  shot,  it  was  held 
that  the  homicide  was  excusable. 

A  homicide  which  is  the  result  of  an  accident  or  misadventure  in 
doing  a  lawful  act  in  a.  lawful  manner,  or  which,  is  done  in  self- 
defense  on  a  sudden  affray,  is  excusable.  Thus,  where  a  lawful 
operation,  performed  with  due  care  and  skill,  causes  the  death  of 
the  patient,  the  homicide  is  excusable.  To  excuse  a  killing  on  the 
ground  of  self-defense  upon  a  sudden  affray,  the  killing  must  have 
been  necessary  to  save  the  person's  life  or  the  lives  of  those  whom  he 
is  bound  to  protect,  or  to  prevent  great  bodily  harm  to  himself  or 
them.  The  danger  must  be  believed  on  reasonable  grounds  to  bo 
imminent,  and  no  necessity  will  exist  until  the  person,  if  not  in  his 
own  house,  has  retreated  as  far  as  he  safely  can.  The  person  doing 
the  killing  must  not  have  been  the  aggressor  and  intentionally  pro- 
voked the  difficulty;  but  if  he  withdraws  in  good  faith  and  his 
adversary  follows  and  renews  the  fight,  the  latter  becomes  the 
sor. 

The  death  must  take  place  within  a  year  and  a  day  of  the  act  or 
omission  that  caused  it,  and  the  offense  is  committed  at  the  place 
of  such  act  or  omission  although  the  victim  may  have  died  elsewhere. 

Malice  does  not  necessarily  mean  hatred  or  personal  ill  will  to- 
ward the  person  killed,  nor  an  actual  intent  to  take  his  life,  or  even  to 
take  anyone's  life.  The  use  of  the  word  "aforethought''  does  not 
mean  that  the  malice  must  exist  for  any  particular  time  before  com- 
mission of  the  aet.  or  that  the  intention  to  kill  must  have  previously 
existed.  It  is  sufficient  that  it  exist  at  the  time  the  act  is  committed. 
(Clark,  pi-.  1ST.  : 

Malice  aforethought  may  exist,  when  (lie  act  is  unpremeditated.  It 
may  mean  any  one  or  more  of  the  following  states  of  mind  preceding 
or  coexisting  with  the  net  or  omission  by  which  death  is  caused;  (a) 
An  intention  to  cause  the  death  of,  or  grievous  bodily  harm  to,  any 


PUNITIVE    \nl  i  251 

person,  whether  such  person  U  n  actually  killed  or  not  (ex- 

cept when  death  is  inflicted  in  the  heat  of  a  sudden  pa  rased 

by  adequate  provocation) ;  (M  knowledge  thai  the  act  which  ca 
tiie  death  will  probaJ  the  death  of,  or  grievous  b  -lily  harm 

to,  any  person,  whether  such  person  is  the  person  actually  killed 
or  not,  although  such  I  is  accompanied   by   indifference 

whether  death  or  grievous  bodily  harm  is  caused  or  not,  or  by  a 
wish  that  it  may  not  be  caused;  (>)  intent  to  commit  any  felony 
(d)  an  intent  to  oppose,  force  to  an  officer  of  other  person  law- 
fully engaged  in  the  duty  of  arresting,  keeping  in  custody,  or  im- 
prisoning any  poison,  or  the  duty  of  keeping  the  peace,  or  dispersing 
an  unlawful  assembly,  provided  the  offender  has  notice  that  the 
person  killed  is  such  officer  or  other  person  so  employed.  (Clark, 
p.  187.) 

PBOOF. 

(a)  That  the  accused  killed  a  certain  person  named  or  described 
by  certain  means,  as  alleged.    This  involves  proof — 
(1)  That  the  person  alleged  to  have  been  killed  is  dead. 
(•2)  That  he  died  in  consequence  of  an  injury  received  by  him. 

(3)  That  such  injury  was  the  result  of  the  act  of  the  accused. 

(4)  That  the  death  took  place  within  a  year  and  a  day  of  such  act. 
(M  That  such  killing  was  with  malice  aforethought:  that  is.  that 

the  accused  was  in  one  or  more  of  the  states  of  mind  described  above, 

II.   RAPE. 

Rape  is  the  having  of  unlawful  carnal  knowledge  of  a  woman  by 
force  and  without  her  consent. 

As  the  carnal  knowledge  must  be  unlawfully  had.  a  husband  who 
has  carnal  knowledge  of  his  wife  forcibly  where  she  does  not  con*<  at 
is  not  guilty  of  this  offense;  but  he  is  guilty  wdien  he  assists  another 
man  in  having  such  carnal  knowledge. 

Any  penetration,  however  slight,  of  the  woman's  genitals  is  suffi- 
cient  carnal  knowL  dge,  whether  emission  occurs  or  not. 

The  offense  may  be  committed  on  a  female  of  any  age,  on  a  man's 
mistress,  or  on  a  common  harlot. 

Force,  actual  or  constructive,  ami  a  want  of  consent  are  indis- 
pensable in  rape,  but  the  \\. <■<■<■  involved  in  the  act  of  penetration  is 
alone  sufficient  force  where  there  is  in  fact  no  consent. 

i!  consent  to  t  ''Mm  though  such  con- 

be  obtained  by  fraud,  there  is  no  pap  here  a  woman 

n  with  a  physician  on  his  false  representation  that 
tl„.  ..  .,  is  part  ,.f  the  required  treatment,  or  where  a  man  successfully 
passes  h  mself  "if  t<.  a  woman  as  her  husband  and  is  admitted  by  her 
to  connection  as  Mich,  the  "rime  of  LOt  committed. 


"252  MANUAL  FOB   COURTS  MARTIAL. 

There  is  no  consent  where  the  woman  is  bo  idiotic  as  to  be  in- 
capable of  consenting,  and  ;i  man  having  c<  onection  with  her  not 
believing  that  he  has  her  conseni  is  guilty  of  rape.  So  also  where 
the  woman  is  insensible,  unconscious,  or  asleep,  or  where  her  apparent 
conseni  was  extorted  by  violence  to  her  person  or  fear  of  sudden 
violence.  A  child  under  the  age  of  10  is  presumed  incapable  of 
consenting. 

Men*  verbal  protestations  and  a  pretense  of  resistance  do  not  of 
course  show  a  want  of  consent,  but  the  contrary,  and  where  a  woman 
fails  to  take  such  measures  to  frustrate  the  execution  of  the  man's 
design  as  she  is  able  to  and  are  called  for  by  the  circumstances  the 
same  conclusion  may  be  drawn. 

It  has  been  said  of  this  offense  that  "  it  is  true  that  rape  is  a  most 
detestable  crime  *  *  *  ;  but  it  must  be  remembered  that  it  is  an 
accusation  easy  to  be  mad*',  hard  to  be  proved,  but  harder  to  be  de- 
fended by  the  party  accused,  though  innocent." 


(a)  That  the  accused  had  carnal  knowledge  of  a  certain  female,  as 
alleged ; 

(b)  That  the  act  was  done  by  force  and  without  her  consent;  or 
that  the  female  was  under  the  age  of  10  years. 

NINETY-THIRD  ARTICLE. 

443.  Any  person  .subject  to  military  law  who  commits  manslaughter,  mayhem, 
arson,  burglary,  robbery,  larceny,  embezzlement,  perjury,  assault  with  intent  to 
commit  any  felony,  or  assault  with  intent  to  do  bodily  harm,  shall  be  punished 
as  a  court-martial   may  direct. 

Definitions  and  Principles. 

See  matter  under  several  offenses  listed  in  the  article. 
Analysis  and  Proof. 

This  article  applies  to  any  person'  subject  to  military  law.     The 
article  defines  the  following  offenses,  namely: 
I.  Manslaughter. 
II.  Mayhem. 
III.  Arson. 
IV.  Burglary. 
Y.  Larceny. 
VI.  Robbery. 
Yll.  Embezzlement. 
VIII.   Perjury. 

IX.  A.ssauH  with  intent  to  commit  any  felony. 
X.  Assault  with  intent  to  do  bodily  harm. 


PUNITIVE   aim  253 

I.    BIANSLA1  i.ll  l  1  B. 

daughter  is  unlawful  homicide  without  malice  aforethought 
and  is  either  voluntary  or  involuntary. 

Voluntary  manslaughter  is  where  the  act  causing  tin'  death  is 
committed  in  the  heat  of  sudden  passion  caused  by  provocation. 

Involuntary  manslaughter  is  homicide  unintentionally  can 
the  commission  of  an  unlawful  act  not  amounting  to  a  felony,  nor 
likely  to  endanger  life,  or  by  culpable  uegligence  in  performing  a 
lawful  act,  or  in  performing  an  act  required  by  law.    (Clark,  pp.  L97, 
204.) 

Id  voluntary  manslaughter  the  provocation  must  he  such 
law  deems  adequate  to  excite  uncontrollable  passion  in  the  mind  of 
a  reasonable  man;  the  act  must  be  committed  under  and  because  of 
the  passion,  and  the  provocation  must  not  be  sought  or  induced  as 
an  excuse  for  killing  or  doing  bodily  harm.     (Clark,  p.  l!>7.) 

The  killing  may  be  manslaughter  only  even  if  intentional,  but 
where  sufficient  cooling  time  elapses  between  the  provocation  and 
the  blow  the  killing  is  murder,  even  if  the  passion  persists.  Instances 
of  adequate  provocation  are:  Assault  and  battery,  indicting  actual 
bodily  harm  or  a  gross  insult;  an  unlawful  imprisonment:  and  the 
sight  by  a  husband  of  an  act  of  adultery  committed  by  hi-  wife.  If 
the  person  so  assaulted  or  imprisoned,  or  the  husband  so  situated  at 
kills  the  offender  or  offenders  in  a  heat  of  a  sudden  passion 
caused  by  their  acts,  manslaughter  only  has  been  committed. 

Instances  of  inadequate  provocation  are:  Knowledge  by  the 
brother  of  a  female  of  her  seduction;  insulting  or  abusive  words  or 
gestures;  and  injuries  to  property. 

In  involuntary  manslaughter  in  the  commission  of  an  unlaw ftil 
act  the  act  must  be  malum  in  se  and  not  merely  malum  prohibtiwn. 
Thus  the  driving  of  an  automobile  in  slight  excess  of  the  speed  limit 
fixed  by  ordinance  is  not  the  kind  of  unlawful  act  contemplated,  but 
voluntarily  engaging  in  an  affray  is  such  an  act.  To  use  an  immod- 
erate amount  of  force  in  suppressing  a  mutiny  is  an  unlawful  act, 
and  if  death  is  caused  thereby  the  one  using  such  force  i-  guilty  of 
manslaughter  at  Least. 

Instances  of  culpable  uegligence  in  performing  a  lawful  ad  are: 
Negligently  conducting  target  practice  so  that  the  bullets  go  in  the 
direction  of  an  inhabited  house  within  range:  pointing  a  pistol  in 
fun  at  another  and  pulling  the  trigger,  believing,  but  without  tak- 
ing reasonable  precautio  certain,  that  it  would  not  be  dis- 
charged; carelessly  Leaving  poisons  or  dangerous  drugs  where  they 
may  endanger  life. 

of  culpable  negligence  in  performing  an  act  requi 
laVl  ape;  i  .,  .•  or  inattention  by  those  in  charge  of  con- 


254  MANUAL   F01 

trolling  or  operating  trains  in  of  their  duties:  culpable 

failure  on  the  part  of  a  parent  to  provide  food,  shelter,  and  medical 
attendance  for  his  helpless  child  v\  here  able  to  do  so. 
Where  there  is  qo  legal  duty  to  act  there  can,  of  course,  be  no 
lect.  Thus  where  a  stranger  makes  no  effort  to  save  a  drowning 
man,  or  a  person  allows  a  mendicant  to  freeze  or  starve  to  death, 
no  crime  is  committed. 


(a)  See  item  (a)  under  "Proof  of  murder'-  under  ninety-second 
article. 

(6)  The  facts  and  circumstances  of  the  case,  as  alleged,  indicat- 
ing that  the  homicide  amounted  in  law  to  manslaughter. 

II.  MAYHEM. 

Mayhem  at  common  law  is  "  a  hurt  of  any  part  of  a  man's  body 
whereby  he  is  rendered  less  aide,  in  fighting,  either  to  defend  himself 
or  t<>  annoy  his  adversary."    (Bishop,  vol.  2,  p.  579.) 

The  offense  at  common  law  did  not  include  such  injuries  which 
merely  disfigure,  such  as  cutting  off  the  nose  or  ear;  but  did  include 
such  injuries  as  knocking  out  a  front  tooth,  or  castration,  which  were 
supposed  to  weaken  a  man's  fighting  ability. 

The  injury  must  be  willfully  and  maliciously  done,  but  need  not 
be  premeditated.  If  the  hurt  is  done  under  circumstances  which 
would  excuse  or  justify  a  homicide,  no  offense  is  committed. 

A  person  inflicting  such  a  hurt  upon  himself  is  guilty  of  this 
offense,  and  if  another  does  it  at  his  request,  both  are  so  guilty. 


(<f)  That  the  accused  inflicted  on  a  certain  person  a  certain  injury 
in  the  manner  alleged. 

(b)  The  facts  and  circumstances  of  the  act  showing  such  injury 
to  have  been  inflicted  intentionally  and  maliciously. 

III.  ARSON. 

Arson,  at  the  common  law,  is  the  malicious  burning  of  another's 
house.     (Bishop,  vol.  2,  p.  5.) 

The  house  must  be  the  dwelling  house  of  another,  as  the  offense  is 
against  the  habitation,  not  against  property  as  such. 

The  term  "dwelling  house"  includes  outbuildings  that  form  part 
of  11  of  buildings  used  as  a  residence.     A  mere  scorching 

is  not  a  burning.  To  constitute  a  burning  some  part,  however  small, 
of  the  house  must  he  actually  consumed  or  disintegrated  by  charring 
or  by  a  blaze. 


PUNITIVE    ARTICLES.  255 

A  shop  or  store  is  not  the  sub;  occupied  as  a 

ling.  It  is  not  arson  to  burn  a  house  that  has  never  lieu  occu- 
pied or  which  lias  been  permanently  abandoned;  but  it  is  arson  if 
the  occupant  is  merely  temporarily  absent.  It  is  not  arson  to  burn 
one's  own  dwelling,  whoever  owns  it,  or  even  the  dwelling  of  another 
at  his  request,  and  this  is  so  even  if  there  is  an  intent  to  burn  an  ad- 
joining house  belonging  to  a  third  party;  but  it  is  arson  if  such  b 
is  actually  burned.  A  house  occupied  by  another  than  the  owner  is 
a  subject  of  arson  by  the  owner. 

The  burning  must  be  willful  and  malicious,  which  excludes  a  burn- 
ing arising  from  negligence  or  mischance,  unless  the  accused  was  en- 
gaged in  the  commission  of  a  felony.  Where  a  man,  who,  in  settiiur 
fire  to  his  own  house  to  get  the  insurance,  burns  his  neighbor's,  he 
is  guilty  of  arson  in  burning  the  neighbor's  house. 


(a)  That  the  accused  burned  a  certain  dwelling  house  of  another, 
as  alleged. 

(b)  Facts  and  circumstances  indicating  that  the  act  was  willful 
and  malicious, 

IV.  BTTRGLAKY. 

Burglary  at  common  law  is  the  breaking  and  entering,  in  the 
night,  of  another's  dwelling  house,  with  intent  to  commit  a  felony 
therein.     (Bishop,  vol.  2,  p.  56.) 

To  constitute  burglary  the  house  must  be  a  dwelling  house  of  an- 
r,  dirclling  house  including  outhouses  within  the  curtilage  or 
the  common  inclosure;  there  must  be  an  actual  breaking,  or  there 
must  be  the  constructive  breaking  involved  where  an  entry  is  effected 
by  fraud  or  false  pretenses,  by  intimidation,  by  conspiracy  with  a 
servant  or  other  inmate,  or  by  descent  of  a  chimney ;  there  must  be 
an  entry;  the  breaking  and  entry  must  both  be  at  night;  but  not  nec- 
essarily on  the  same  night,  and  there  must  be  an  intent  to  commit  a 
felony  in  the  house  at  the  time  of  the  breaking  and  of  the  entering, 
but  the  felony  need  not  be  committed.    (Clark  and  Marshal,  pp. 

re  is  not  a  subject  of  burglary  unless  part  of  or  used  also  as 

a  dwelling  house  as  when-  the  OCCUpant  OSes  another  part  of  the  same 

building  as  his  dwelling;  or  where  the  store  is  habitually  slept  in  by 

of  his  family. 

The  b  i   be  in  the  Btfttus  of  being  occupied  at  the  time  of 

meating  ami  entering.     1'  i  to  this  status  that 

any  one  actually  be  in  it;  but  if  the  h  occupied 

il  or  has  been  left  without  any  intention  of  returning  to  it  this 


256  LNUAL   FOB   COTJBTS-MABTIAL. 

status  does  not  3<  parate  dwellings  within  the  same  building 

as  a  flat  in  an  apartment  house  or  a  room  in  a  hotel  are  subjects  of 
burglary  by  other  tenants  or  guests,  and  in  general  by  the  owner  of 
tin-  building  himself.  Ai  common  law  a  tent  is  not  a  subject  of 
burglary. 

There  must  be  a  breaking,  actual  or  constructive.  Merely  to  enter 
through  a  hole  left  in  the  wall  or  roof  or  through  an  open  -window  or 
door,  even  if  left  only  slightly  open  and  pushed  farther  "pen  by  the 
person  entering,  will  not  constitute  an  actual  breaking;  but  where 
there  is  any  removal  of  any  part  of  the  house  designed  to  prevent 
entry,  other  than  the  moving  of  a  partly  open  door  or  window,  it  is 
sufficient.  Thus  opening  a  closed  door  or  window  or  other  similar 
fixture,  or  cutting  out  the  glass  of  a  window  or  the  netting  of  the 
screen  is  a  sufficient  breaking.  So  also  the  breaking  of  an  inner  door 
by  one  who  has  entered  the  house  without  breaking,  or  by  a  servant 
lawfully  within  the  house,  but  who  has  no  authority  to  enter  the  par- 
ticular room  is  a  sufficient  breaking,  but  unless  such  a  breaking  is  fol- 
lowed by  an  entry  into  the  particular  room  with  intent  to  commit  a 
felony  therein,  burglar}'  is  not  committed. 

There  is  a  construct  ice  breaking  when  the  entry  is  gained  by  a  trick, 
such  as  concealing  oneself  in  a  box ;  or  under  false  pretense,  such  as 
personating  a  gas  or  telephone  inspector;  or  by  intimidating  the 
inmates  through  violence  or  threats  into  opening  the  door ;  or  through 
collusion  with  a  confederate,  an  inmate  of  the  house;  or  by  descending 
a  chimney,  even  if  only  a  partial  descent  is  made,  and  no  room  is 
entered.  An  entry  must  be  effected  before  the  offense  is  complete; 
but  the  entry  of  any  part  of  the  body,  even  a  finger,  is  sufficient;  and 
an  insertion  into  the  house  of  an  instrument,  except  merely  to  facili- 
tate further  entrance,  is  a  sufficient  entry. 

Both  the  breaking  and  entry  must  be  in  the  nighttime,  which  at 
common  law  was  the  period  between  sunset  and  sunrise  when  there  is 
not  sufficient  daylight  to  discern  a  man's  face,  and  both  must  be  done 
with  the  intent  to  commit  a  felony  in  the  house.  It  is  immaterial 
whether  the  felony  be  committed  or  even  attempted,  and  where  a  fel- 
ony is  actually  intended  it  is  no  defense  that  its  commission  was 
impossible.    The  felony  intended  may  be  a  statutory  felony. 


(a)  That  the  accused  broke  and  entered  a  certain  dwelling  house 
of  a  certain  other  person,  as  specified. 

(b)  That  such  breaking  and  entering  was  done  in  the  nighttime. 

(c)  The  facts  and  circumstances  of  the  case  (for  instance,  the 
actual  commission  of  the  felony)  which  indicate  that  such  breaking 
and  entering  were  done  with  the  intent  to  commit  the  alleged  felony 
therein. 


PUNITIVE   ARTICLES.  257 

V.    LARCENY. 

Larceny  at  common  law  is  the  taking  and  removing,  by  trespass, 
of  personal  property  which  the  trespasser  knows  to  belong  either 
generally  or  specially  to  another,  with  the  felonious  intent  to  deprive 
him  of  his  ownership  therein.     (Bishop,  vol.  2,  p.  440.) 

In  larceny  there  must  be  a  taking  and  carrying  away.  When 
actual  physical  possession  is  obtained  and  the  property  moved  the 
least  distance,  the  taking  and  carrying  away  is  complete.  Such 
possession  must,  however,  be  complete;  thus,  enticing  a  domestic 
animal  a  short  distance,  or  seizing  property  secured  by  a  chain,  or 
causing  another  to  drop  property  by  knocking  his  hand  is  not  a 
taking  of  such  property.  The  taking  need  not  be  by  the  hands  of 
the  thief.  Thus,  where  one,  having  the  required  intent  to  steal, 
entices  a  horse  into- his  own  stable  without  touching  him,  or  procures 
an  insane  person  to  take  the  goods,  or  procures  a  railroad  company 
to  deliver  another's  trunk  by  changing  the  check  on  it,  he  is  guilty 
of  larceny. 

The  taking  must  be  by  trespass;  that  is,  the  property  must  be 
taken  from  the  actual  or  constructive  possession  of  the  owner  with- 
out his  consent. 

One  who  has  a  lawful  right  to  the  possession  of  the  property  of 
another  can  not  steal  it.  Thus  where  an  article  is  borrowed  or 
hired  in  good  faith  the  bailee  does  not  commit  larceny  if  he  sub- 
sequently during  the  bailment  decides  to  and  does  convert  the  article 
to  his  own  use.  But  if  at  the  time  the  article  is  borrowed,  etc.,  the 
borrower  intends  to  convert  it,  such  a  taking  is  by  trespass  and  his 
act  a  larceny.  And  where  the  possession  of  an  article  is  obtained  by 
fraud,  although  no  intent  to  steal  existed  at  the  time,  a  subsequent 
forming  and  carrying  out  of  such  intent  is  a  larceny,  as  the  taking 
and  keeping  possession  in  such  a  case  is  a  continuing  trespass.  Thus 
where  a  horse  was  hired  by  one  who  really  intended  to  go  farther 
than  he  stated  to  the  ovrner,  but  who  did  not  intend  to  steal  the  horse, 
it  was  held  that  his  subsequent  conversion  of  the  animal  was  a 
larceny. 

These  rules  apply  to  any  case  of  bailment,  but  do  not  apply  where 
the  owner  intends  to  part  with  the  ovjnership  of  the  property.  Where 
a  carrier  of  goods  in  a  bale,  or  a  person  intrusted  with  a  trunk  for 
safekeeping  breaks  bulk  and  appropriates  part  or  all  of  the  contents, 
he  is  guilty  of  larceny  regardless  of  what  his  intention  was  when  he 
received  the  property. 

The  principle  of  the  rules  as  to  a  bailee  who  accepts  the  possession 

of  property  in  good  faith,  or  who  intends  at  the  time  to  steal  it, 

applies  to  cases  of  property  delivered  by  mistake.    Thus,  where  an 

article  intended  for  one  is  delivered  to  another  by  mistake  the  latter'a 

—18 


258  MANUAL  FOR  COURTS- MARTIAL. 

acceptance  of  the  possession,  knowing  of  the  mistake  and  with  the 
required  intent,  is  a  larceny;  but  if  he  accepts  it  in  ignorance  of  the 
mi-take  and  in  good  faith  as  intended  for  him,  his  subsequent  appro- 
priating to  his  own  use  is  not  a  larceny,  as  there  "was  no  trespass  io 
the  taking. 

This  same  rule  applies  where  a  person  is  paid  by  mistake  more 
money  than  he  is  entitled  to. 

The  possession  of  goods  may  be  in  one  person  although  the  goods 
themselves  be  in  the  actual  manual  control  of  another,  who  is  said  to 
have  the  <  I  them.    Thus,  where  the  owner  of  a  coin  gives  it 

to  a  friend  to  examine  on  the  spot,  he  still  retains  the  possession,  and 
if  the  recipient  goes  away  with  the  coin  intending  to  steal  it  he  is 
guilty  of  larceny.  So,  too,  a  guest  at  a  hotel  or  a  private  house  has 
the  bare  custody  of  articles  such  as  those  in  his  room  or  given  him 
for  use  at  the  table  and  can  commit  a  larceny  of  such  articles. 

Where  a  servant  receives  goods  or  coins  from  his  master  to  use, 
care  for,  or  employ  for  a  specific  purpose  in  his  service,  the  master 
retains  possession  and  the  servant  has  the  custody  only  and  may 
commit  larceny  of  them.  The  fact  of  the  existence  of  the  relation- 
ship of  master  and  servant  does  not  prevent  the  latter  from  being 
a  bailee  of  the  former's  property,  in  which  case  the  rules  as  to  bailees 
apply ;  for  instance,  a  master  might  lend  his  servant  a  horse  to  use 
on  the  hitter's  own  business.  Where,  however,  a  servant  receives 
goods  or  coins  from  a  third  person  on  behalf  of  his  master  he  ha? 
the  possession  of  the  goods  or  coins  and  can  not  commit  a  larceny  of 
them  until  they  have  reached  the  possession  of  his  master,  which 
they  do  when  delivered  into  his  hands  or  deposited  in  the  receptacle 
or  place  provided  for  the  purpose.  Thus,  if  a  clerk  receive  some 
coins  for  his  master  in  the  course  of  business  and  places  in  the  cash 
drawer  or  safe  belonging  to  the  master  he  no  longer  has  the  posses- 
sion of  the  coins  and  his  taking  of  them  with  the  requisite  intent 
would  be  larceny;  but  he  does  not  relinquish  possession  if,  merely 
for  his  own  convenience,  he  uses  the  safe  or  drawer  as  a  hiding  place. 
His  subsequent  taking  of  the  coins  would  not,  therefore,  be  larceny. 

This  distinction  between  custody  and  possession  is  of  the  ut 
importance,  for  it  is  often  very  difficult  to  determine  whether  the 
crime  or  embezzlement,  each  particular  case  depending 

up.m  the  peculiar  circumstances.     To  illustrate  the  doctrine:  V 
b  third  person  hands  a  clerk  money  t<>  pay  a  bill  which  he  owes  the 
clerk's  employer,  and  the  clerk,  instead  of  putt]  into 

lii-  employ  er's  safe  or  other  proper  place,  puts  it  into  !>is  <  wn  pocket 
;,,,(!  it,  or  hides  it  on  the  premise:  and  afterwards  car- 

ries it  off,  he  >loes  not  commit  1  money  has  not 

reached  its  destination,  but  is  merely  in  transit,  the  master  has  not 
obtained  possession,  either  actual  or  constructive.     If,  however,  the 


PUNITIVE  ARTICLES.  259 

clerk  puts  the  moneys  in  the  safe,  it  is  in  his  employer's  constructive 
possession;  and  if  he  takes  it  out  again  and  converts  it,  he  is  guilty 
of  larceny.  If  it  is  not  the  duty  of  the  clerk  to  put  the  money  in 
the  safe,  but  he  is  required  to  keep  it  on  his  person  for  his  master, 
then,  as  soon  as  he  received  the  money,  it  has  readied  its  ultimate 
destination,  and  he  will  be  guilty  if  he  appropriates  it,  instead  of 
holding  it  for  his  master.  If  a  master  gives  his  servant  a  check  to 
take  to  the  bank  and  get  cashed  he  has  mere  custody  of  the  check 
'.  and  commits  larceny  if  he  appropriates  it;  but  if  he  cashes 
the  check  and  appropriates  the  money  he  commits  embezzlement 
only,  as  the  money  has  never  been  in  the  master's  possession.  (Clark, 
pp.  285,  286.) 

Where  the  owner  of  an  article  delivers  it  to  another,  intending  at 
the  time  an  unconditional  passing  of  the  property  as  well  as  the 
possession,  the  other  can  not  be  guilty  of  larceny,  whatever  the  in 
ducement  employed  b}7  him.  Thus  where  property  is  obtained  from 
a  dealer  on  the  false  pretense  of  being  sent  for  it  by  a  regular  chi 
customer,  or  where  property  is  bought  on  credit  with  no  intention 
of  paying,  or  where  a  bogus  check  is  given  in  payment  of  goods  or 
in  exchange  for  money,  or  where  money  is  borrowed  on  false  pre- 
tenses with  the  understanding  that  different  coins  or  bills  are  to 
be  returned  there  is  no  larceny. 

In  the  case  of  property  delivered  by  servants  or  agents,  such 

delivery  can  not  go  beyond  the  actual  or  apparent  authority  of  the 

ant  or  agent.     So  where  a  master  sends  his  servant  with  a 

c.  o.  d.  package,  and  the  purchaser  induces  the  servant  to  give  him 

the  package  without  payment  or  pays  with  a  worthless  check,  intend- 

. ;  keep  the  package,  it  is  larceny. 

The  reason  for  the  rule  above  stated  as  to  an  intention  to  pass 
the  property  preventing  the  taking  from  amounting  to  larceny  is 
that  the  consent  of  the  owner  precludes  the  existence  of  an  essential 
element  of  larceny,  viz,  a  trespass.  But  where  the  taking  overlaps 
(he  consent  given  it  is  pro  tanto  a  trespass  and  where  the  other  ele- 
ments of  larceny  are  present,  he  who  does  the  taking  is  guilty  of  the 
Thus  where  one  gets  candy  from  a  slot  machine  by  using 
rfeit  coin,  or  where  a  customer  after  buying  a  cigar  takes 
the  whole  box  of  matches  provided  by  owner  of  the  store  for  the  use 
of  hi  -.  the  act  in  each  case  is  a  trespass,  and  the  offenders 

.  iilty  of  larceny  if  the  other  elements  of  that  offense  are  present. 
:atioD  of  the  rule  that  the  consent  must  be  as 
as  the  taking  is  ma  owner's  intent  is  to 

the  property  in  the  goods  only  when  a  condition  is  fulfilled.    Thus 
re  handed  to  a  purchaser  on  sale  the  title  is 

not  inten  ul  the  price  is  paid;  and  if  the  person  re- 


200  MA.  a    COUETS-MAM 

'  em  runs  of!  with  tlu  goods  without  paying  for  them  and 
with  the  required  b  guilty  of  larceny. 

This  rule  applies  in  many  analagoi  t  is  lar- 

ceny "  for  a  man  to  whom  money  is  handed  to  be  changed  to  run  off 
with  it  or  keep  it,  1  refuse  to  give  th< 

though  the  intention  may  be  that  he"  shall  keep  part  of  it  as  payment 
-  a  loan,  for  there  is  no  consent  to  part  with 
the  money  without  receiving  the  ((lark  and  Marshal,  p. 

In  the  £  conditional  delivery  (he  recipient  has  only 

the  ba  ly  and  it  is  theref  rial  whether  the  in 

to  steal  existed  at  the  time  of  the  delivery,  or  was  formed  la1 

The  taking  may  be  from  any  one  having  possession  of  the  prop- 
erty;  hence,   property   may   be   stolen    from  one   who  himself 
stolen  it,  and  the  owner  of  goods  may  steal  them  from  a  bailee  with 
a  sp(  rty  in  them. 

One  retains  the  constructive  possession  of  property  although  it  is 
actually  out  of  his  control  until  some  one  else  takes  possession,  except 
in  the  case  of  abandoned  property.  So  where  a  desk  was  sold  and 
coins  were  afterwards  found  by  the  purchaser  in  a  secret  drawer 
and  taken  by  him,  he  takes  it  from  the  possession  of  the  owner. 
Where  a  person  finds  property  he  has  a  right  to  take  it  and  examine 
it.  If  the  circumstances  give  him  no  clue  to  the  ownership  he  can 
rightfully  appropriate  it  and  this  act  or  a  subsequent  refusal  to  give 
it  up  to  the  owner  will  not  be  a  larceny,  as  there  was  no  trespass  in 
the  taking.  If  the  circumstances  do  give  him  such  a  clue  he  can  right- 
fully assume  possession  for  the  owner  and  a  subsequent  change  of 
intent  and  an  appropriation  of  the  property  would  not  be  a  lar 
but  where  he  intends  to  appropriate  it  at  the  time  he  assumes  pos- 
>n  he  is  guilty  of  larceny,  and  none  the  less  so  if  he  intends 
to  return  it  in  the  event  that  a  reward  is  • 

In  larceny,  as  in  other  crimes,  the  evil  intent  and  the  act  must 
it ;  that  is,  as  stated  in  the  definition  of  larceny,  the  taking  and 
removing  by  trespass  must  be  with  the  particular  intent  described. 

But  where  the  possession  of  property  is  obtained  by  a  tresps 
subsequent  retention  of  the  property  without  right  is  a  continuing 
.  iss,  and  however  innocent  the  original  intent  of  the  trespa 

.   if  while  wrongfully  retaining  possession  he  has 
teal.     Thus  where  an  animal  belonging  to  one  person 
erd  of  another  and  is  driven  oil'  by  mis- 
v.lihout  the  know]  ither  person,  there  is  a  continuing 

tres]  I'  on  discovering  his  mistake  the  owner  of  the  herd 

i  Is  the  animal  to  hi  -  <•••..  >,  n  e  he  is  guilty  of  larceny. 
The  felonious  intent  in  >..  thai  entertained  by  a  thief:  i.  e., 

a  fraudulent  intent  to  deprive  the  owner  permanently  of  his  prop- 
erty in  tii"  good   or  of  their  value  or  a  part  of  their  value.     Unless 


pi'm  261 

-■  with  the  taking  and  carrying  away  by  trespass 

committed  where  the  taking  was  without  any 
intent  at  the  property,  as  in  the  cas  iken 

accidentally;  or  where  th<>  intent  was    to  take  "tic's 
own  pro]  in  the  case  of  property  taken  und 

claim  of  right,  however  unfounded;  or  where  the  intent  was  to  take 
anoi 

out  of  curi 
i,  or  to  deprive  him  of  th«  power  of  using  it.    Thus  if 
one  takes  len  prop- 

.  or  takes  nil  iu  order  to  prc\ 

iking  a  cudgel  out  of  the  owner's  hand  to 

prevent  a  beating  there  is  no  larcei 

Whether  the  required  intent  exists  where  property  is  taken  to  pawn 

up  >n  the  circii:  es  of 

pledge  would  come  within  the  above  rule  as  to 

temp  where  the  intent  is  in  good  faith  to  redeem  and 

return  it;  but  in  the  absence  of  such  intent  th( 

Win  iv  the  taking  is  with  the  design  of  returning  it  to  the  owner. 
in  the  hope  of  obtaining  a  reward,  it  is  not  larceny;  but  if  the 
v  until  a  reward  is  offered  it  is.    Tal 
with  the  intent  to  sell  it  back  to  the  owner  or  return  it  to 
him  for  some  other  consideration  is,  of  course,  more  indicative  of 
than  inconsistent  with  the  existence  of  the  required  intent.     Thus, 
ig  a  railroad  ticket  is  none  the  less  stealing  because  it  was  in- 
to ■■  railroad  when  made  use  of. 

goods  are  taken  and  removed  with  the  felonious  intent 
use  is  complete  and  is  none  the  less  a  Ian 
y  have  had  in  mind 
without  benefit  or  i  ;t'.    Thus,  an  in  ive  it 

to  another  or  '  evi- 

dence or  othei  ;mself  or  anoth  »t  prevent  tho 

dous  taking  of  another's  property  from  I  ay. 

rinciple  it  has  I  that  a  servant  who 

took  his  master's  oats  for  the  purpose  of  feeding  them 

When  a  1  '  commits  by  the 

arty  or  paym<  at  for  it,  is  no 

amon   law   personal   property  only  can   be 
Tin  it  down  o 

!  immedi  I  ay  by  him.  there  is  no 

But  should  tli  fter  cut! in]  i 

for  '■  Fallen  timber  and  relinquish  his  possession, 


262  MANUAL    VQB    COUB  1  S-; MARTIAL. 

the  posseesioi]  of  the  owner  attaches  to  the  property  in  its  new  char- 
acter as  personal  property,  and  a  subsequent  taking  by  the  trespasser 
with  intent  to  steal  is  Larceny. 

At  common  law  a  piece  of  paper  may  be  stolen,  though  its  vali 
Less  than  that  of  the  smallest  coin:  but  if  the  paper  is  so  written 
upon  .  \  Ldence  of  valid  and  subsisting  agreement,  it  loses  its 

value  as  a  piece  of  paper  and  is  no  longer  a  subject  of  larceny.    Thus, 
a  promissory  note,  a  bank  note  or  a  post-exchange  check  or  other 
writing  evidencing  a  chose  in  action  is  not  a  subject  of  : 
common  law.    But  oited  States  Penal  Code,  chai 

this  rule  ke  written  instruments  subject  to  theft  and  to 

their  value  as  the  amount  of  money  due  thereon.    Many  of  the  States 
atute  have  so  changed  the  rule.    {€.  M.  C.  AT.,  No.  1.) 

PROOF. 

(a)  The  taking  by  the  accused  of  the  property  as  alleged. 

(b)  The  carrying* away  by  the  accused  of  such  prop, 

(c)  That  such  property  belonged  to  a  certain  other  person  named 
or  described. 

((f)   That  such  property  was  of  the  value  alleged,  or  of  some  \  a 
(e)  The  facts  and  circumstances  of  the  case  indicating  that  the 
taking  and  carrying  away  were  by  trespass  and  with  a  fraudulent 
intent  to  deprive  the  owner  permanently  of  his  property  or  interest 
in  the  goods  or  of  their  value  or  a  part  of  their  value. 

VI.  ROBBERY. 

Robbery  at  common  law  is  the  taking,  with  intent  to  steal,  of  the 
mal  property  of  another,  from  his  person  or  in  his 

violence  or  intimidation.     (Clark,  p.  323.) 

The  felonious  and  forcible  taking  from  the  person  of  another 
goods  or  money  to  any  value  by  violence  or  putting  him  in  fear. 
(Bouvier's  Law  Dictionary,  13th  ed.,  vol.  2,  p.  601.) 

Robbery  includes  larceny  and  the  elements  of  that  offense  must 
always  be  present.    See  matter  under  heading  "  V  "  under  this  article. 

Thus  it  is  not  robbery  to  take  one's  own  property,  unless  the  person 
from  whom  it  is  taken  has  a  special  property  in  the  goods  and  the 
right  to  possession ;  nor  is  it  robbery  to  take  property  that  is  honestly 
believed  to  be  one's  own  or  to  take  it  for  a  merely  temporary  use. 

It  is  not  necessary  that  the  person  from  whom  the  property  is  taken 
be  the  actual  owner — it  is  enough  if  he  have  a  possession  or  a 
tody  that  is  good  against  the  taker. 

The  property  must  be  taken  from  the  person  or  in  his  pr 

but  i  ae  presence  it  is  that  the  owner  be  within 

any  certain   distance  of  his  :  it  is  enough   if  he  be  near 

in  control  of  hi  y.    Thus  where  some  persons 

red  i  hoof  d  the  on  oer  by  threats  to  disclose  the  hiding 

place  of  valuables  in  an  adjoining  room,  and  then,  leaving  the  owner 


PUNITIVE   ARTICLES.  263 

tied,  went  into  such  room  and  stole  the  valuables  their  offense  was 
held  to  be  robbery. 

The  taking  must  be  against  the  owner's  will  by  means  of  violence 
or  intimidation.  The  violence  or  intimidation  must  precede  or  ac- 
company the  taking.  Thus  where  property  is  taken  by  stealth  from 
the  person  of  its  owner  it  is  not  robbery  in  case  the  thief  overcomes  a 
forcible  effort  to  retake  it;  or  the  owner  is  deterred  by  the  threats 
of  the  thief  from  making  an  attempt  to  retake  it. 

The  violence  must  be  actual  violence  to  the  person,  but  the  amount 
of  violence  used  is  immaterial.  It  is  enough  where  it  overcomes  the 
actual  resistance  of  the  person  robbed,  or  puts  him  in  such  a  posi- 
tion that  he  makes  no  resistance,  or  suffices  to  overcome  the  resistance 
offered  by  a  chain  or  other  fastening  by  which  the  article  is  at- 
tached to  the  person.  Where  an  article  is  merely  snatched  out  of 
another's  hand  or  a  pocket  is  picked  by  stealth  and  no  other  force  is 
used  and  the  owner  is  not  put  in  fear,  the  offense  is  not  robbery.  But 
if  in  snatching  the  article  resistance  is  overcome,  there  is  sufficient 
violence,  as  where  a  woman's  earring  is  torn  from  her  ear  or  a  hair 
ornament  entangled  in  her  hair  is  snatched  away.  So,  also,  when 
a  person's  attention  is  diverted  by  being  jostled  by  a  confederate  of 
a  pickpocket,  who  is  thus  enabled  to  steal  the  person's  watch,  it  is  a 
robbery. 

Other  instances  of  robbery  by  violence  are  where  a  man  is 
knocked  insensible  and  his  pockets  rifled,  and  where  an  officer  steals 
property  from  the  person  of  a  prisoner  in  his  charge  after  hand- 
cuffing him  on  the  pretext  of  preventing  his  escape. 

It  is  equally  robbery  whether  the  robber  prevents  resistance  by 
rendering  his  victim  physically  incapable  of  making  any,  or  by  put- 
ting him,  by  threat  or  menaces,  in  such  fear  that  he  is  warranted 
in  making  none.  The  fear  must  be  a  reasonably  well-founded  appre- 
hension of  present  or  future  danger,  and  the  goods  must  be  taken 
while  such  apprehension  exists.  The  danger  apprehended  may  be, 
for  instance,  his  own  death  or  some  bodily  injury  to  him,  or  the  de- 
struction of  his  habitation,  or  a  prosecution  for  sodomy. 

In  the  last  case  it  is  immaterial  whether  the  person  threatened 
with  the  prosecution  is  innocent  or  guilty  of  the  offense.    A  danger 
of  being  prosecuted  for  any  other  offense  is  held  not  to  be  sufficient. 
b  and  Marshall,  p.  8G5.) 


(a)   The  larceny  of  the  property.    See  proof  under  larceny  above. 
(M  That  such  larceny  was  from  the  person  or  in  the  pre.-' 
the  person  alleged  to  have  been  robl 

(c)  That  the  taking  was  by  violence  or  putting  in  fear,  as  alleged. 


264  MAM  AT,   FOR   COURTS-MARTTAL. 

VII.    EMBEZZLEMES  I'. 

Embezzler  fraudulent  appropriation  of  another's  pi 

\>\  a  person  to  whom  it  has  been  intrusted  or  into  whose  hands  it 
fully  come.     It  differs  from  Larceny  in  that  the  original 
_■•  of  (he  prop  i  the  consent  of  th"  owner, 

while  in  Is  felonious  intent  mi  I  at  the  time  of 

•1.  15,  p.  188.) 
Embezzlement  is  not  a  common  law  but  a  statuto 
The  purpose  of  embe:  statutes  is  to  meet  the  case  of  a 

ant,  clerk,  bailee,  or  other  person  to  whom  the  possession  of  prop- 
erty is  intrusted  by  or  for  the  owner,  and  who  fraudulently  misap- 
propriates it  to  his  own  use  or  otherwise,  the  circumstances  being 
such  that  th  it  larceny. 

The  gist  of  th(  a  breach  of  trust,  and  can  not  be  com- 

mitted unless  some  fiduciary  relationship  exists  between  the  owner 
and  the  person  in  possession  of  the  property  and  unless  such  pos- 
D   was  taken  by  virtue  of  such  relationship. 


(a)  That  the  as  the  clerk  or  servant  of  a  certain  other 
person  or  stood  in  some  other  fiduciary  relationship  to  that  per- 
son, as  alleged. 

(b)  That  in  such  fiduciary  capacity  the  accused  received  into  iris 
possession  certain  money  or  property  of  such  person,  as  alleg 

(c)  Thai  he  fraudulently  converted  or  appropriated  to  his  own  use 
such  money  or  property. 

(J)  "\  and  circum  liowing  that  such  convei 

opriation  was  with  fraudulent  intent. 

Mil.   PERJURY. 

Perjury,  at  common  law,  is  the  willful  and  corrupt  giving,  upon 
a  lawful  oath,  or  in  any  form  allowed  by  law  to  be  substituted  for 
an  oath,  in  a  judicial  proceeding  or  course  of  justice,  of  Ealse  tes- 
timony materia]  to  the  issue  or  matter  of  inquiry.     (Clark,  p.  3S5.) 

The  false  testimony  must  be  willfully  and  corruptly  given ;  that  is, 
with  a  deliberate  intent  to  testify  fa 

It  is  not  perjury  to  testify  by  mistake  to  what  is  believed  to  be  true, 
however  unfounded  the  belief  may  be;  hence,  a  witnes  atra- 

dict  under  oath  testimony  formerly  given  by  him  without  commit- 
ting perjury,  since  he  may  on  each  occasion  have  believed  his  testi- 
mony to  be  true.    On  the  other  hand,  a  witness  may  commit  perjury 


rUNITTTT.   ARTICLES.  2G5 

by  testifying  that  he  knows  a  thing  to  be  true  when  in  fact  he  cither 
knows  nothing  about  it  at  all  or  is  not  sure  about  it.  and  this  is  so 
fcher  the  thing  he  true  or  false-  in  fact     So,  also,  a  witness  may 
commit  perjury  in  te.  tifying  falsely  as  to  his  belief,  remembrai 

.  or  as  to  his  judgment  or  opinion  on  matters  of  fact. 
Thus  where  a  witne  that  he  does  not  remember  certain  f 

when  in  fact  he  does  he  commits  perjury,  if  the  oth  ts  of 

the  ■  where  a   \  stifled  that  in 

drunk  when  in  fact  he  entertains 

i.ioll. 

The  oath  must  '  quired  or -authorized  by  law  and  must  he 

duly  administered  by  one  authorized  to  administer  it.  If  no  particu- 
lar form  of  oath  is  prescribed  by  statu  rm  of  oath  is  imma- 
■!.  but  "  tb  be  in  some  form,  in  the  presence  of  an  officer 
authorized  to  administer  it,  an  unequivocal  and  present  ad  by  which 
the  affiant  takes  upon  himself  the  obligation  of  an  oath."  (Clark  and 
Marshal,  p.  863.) 

Thus,  where  a  person  merely  delivers  an  affidavit  signed  by  him 
to  an  officer  authorized  to  administer  the  oath  thereto,  and  without 
anything  more  being  said  or  done  the  i  jurat,  no  oath 

has  been  administei 

Where  a  form  of  oath  has  been  p]  a  literal  following  of 

the  statute  is  m>t  essential.     It  is  sufficient  if  the  oath  administered 
conforms  in  substance  to  the  statutory  form. 

An  oath  includes  an  affirmation  where  the  latter  is  authorized  in 
lieu  of  an  oath. 

It  is  no  defense  that  the  witness  voluntarily  appeared,  or  that  he 
was  incompetent  as  a  witness,  or  that  his  _ri\en  in 

response  to  questions  that  he  could  have  declined  to  answer,  even  if 
he  w;h  forced  claim  of  privilej 

Tt  Le   .    "  ,  if  the  tribunal  «  ad  no  juris- 

diction of  the  cause  in  which  the  false  testimony  was  given. 

The  false  testimony  must  be  material  to  the  i  itter  of  in- 

quiry, or  matte:-  of  inquiry  may  be  a  collateral  one. 

ury  may  I  iterial  false  testimony 

with  i  ial  witness,  or  in  an  affidavit 

in  support  of  well  as  by  gh  ing 

i  which  a  legitii 
be  drawn  as  to 

e  that  such  testimony  would  have  been  ex.  luded  i: 
or  that  it  \  '.  or  that  it  did 

esult  in  ndered  it 


2G6  ■•''  'AL   FOR  COUETS-MARTIAL. 

pboov. 

(a)  That  a  certain  judicial  proceeding  or  course  of  justice  was 
pending. 

(b)  That  the  accused  was  sworn  in  such  proceeding. 

i   That  such  oatli  was  administered  to  the  accused  in  a  matte" 
where  an  oath  was  required  or  authorized  by  law,  as  alleged. 

(d)  That  such  oath  was  administered  by  a  person  having  author- 
ity to  do  so. 

(e)  That  upon  such  oath  he  gave  the  testimony  alleged. 

(/)  That  such  testimony  was  false,  and  material  to  the  issue  or 
matter  of  inquiry. 

(g)  The  facts  and  circumstances  indicating  that  such  false  tes- 
timony was  willfully  and  corruptly  given. 

IX.    ASSAULT  WITH  INTENT  TO  COMMIT  ANY  FELONY. 

An  assault  with  intent  to  commit  any  felony  is  an  assault  m 
with   a  specific  intent  to  murder,  rape,   rob,  or  to  commit  man 
slaughter,  sodomy,  or  other  common-law  felony. 

An  assault  is  an  attempt  or  offer  with  unlawful  force  or  violence  to 
do  a  corporal  hurt  to  another.     (Clark  and  Marshall,  p.  271.) 

Raising  a  stick  oyer  another's  head  as  if  to  strike  him,  presenting 
a  firearm  ready  for  use  within  range  of  another,  striking  at  another 
with  a  cane  or  fist,  assuming  a  threatening  attitude  and  hurrying 
toward  another  are  examples  of  assaults. 

Some  overt  act  is  necessary  in  any  assault.  Mere  preparation,  such 
as  unfastening  the  catch  on  a  pistol  holster  in  order  that  the  pistol 
may  be  drawn,  or  picking  up  a  stone  at  a  considerable  distance  from 
another  without  making  any  attempt  or  offer  to  throw  it,  is  not  an 
assault. 

The  force  or  violence  must  be  physical;  mere  words,  however 
threatening,  or  insulting  gestures  are  not  b}'  themselves  sufficient  tc 
constitute  an  assault. 

Furthermore,  in  an  assault  there  must  be  an  intent,  actual  or  ap 
parent,  to  inflict  corporal  hurt  on  another. 

Where  the  circumstances  known  to  the  person  menaced  clc 
negative  such  intent  there  is  no  assault.  Thus,  where  a  person  accom 
panics  an  apparent  attempt  to  strike  another  by  an  unequivocal  an- 
nouncement in  some  form  of  his  intention  not  to  strike,  there  is  no 
assault.  This  principle  was  applied  in  a  case  where  the  defendant 
raised  his  whip  and  shook  it  at  the  presecutor  within  striking  dis 
tance  saying,  "  If  you  weren't  an  old  man,  I  would  knock  you  down.' 

Viewed  solely  as  an  attempt  to  commit  a  battery  there  must  be  an 
actual  or  constructive  intent  to  do  a  corporal  hurt  to  another,  and  an 


IMMilVi;   ARTICLES.  267 

act  of  unlawful  violence  or  force  begun  to  be  executed  with  a  view  to 
indicting  such  hurt.    How  such  purpose  is  defeated  is  Immaterial. 

The  following  have  been  he'd  to  be  assaults:  Riding  after  a  person 
so  as  to  compel  him  to  seek  safety  in  an  inclosure  to  avoid  a  beating, 
though  the  assailant  was  never  near  enough  to  hit  him;  rushing 
upon  another  in  a  threatening  attitude  although  before  quite  close 
enough  to  strike,  the  person  threatened  strikes  in  self-defense  or 
the  attack  is  frustrated  by  a  third  person. 

It  is  also  an  assault  where  the  person  in  order  to  avert  the  taking 
effect  of  the  unlawful  violence  yields  to  a  demand  of  his  assailant. 
Thus,  where  A,  being  within  striking  distance  of  B,  raises  a  weapon 
for  the  purpose  of  unlawfully  striking  him,  stating  that  he  will 
strike  unless  B  does  a  certain  thing,  and  B  does  that  thing,  thereby 
averting  the  hlow,  A  commits  an  assault. 

It  is  not  a  defense  to  a  charge  of  assault  that  for  some  reason 
unknown  to  the  assailant  his  attempt  was  bound  to  fail.  Thus, 
where  a  soldier  loads  his  rifle  with  what  he  believes  to  be  a  good 
cartridge  and,  pointing  it  at  a  person,  pulls  the  trigger,  he  is  guilty 
of  assault  although  the  cartridge  was  so  defective  that  it  could  not 
be  used.  The  same  principle  was  applied  to  a  case  where  a  person 
in  a  house  shoots  through  the  roof  at  a  place  where  he  supposed  a 
policeman  was  concealed,  though  the  policeman  was  at  another  place 
en  the  roof. 

The  intent  need  not  be  to  injure  a  particular  person,  and  mere 
recklessness  may  supply  the  place  of  intent.  Thus,  where  one  strikes 
at  A  believing  him  to  be  B,  he  is  guilty  of  assaulting  A ;  and  where 
one  fires  a  loaded  and  capped  pistol  at  another  recklessly,  and  not 
knowing  or  seeking  to  know  whether  it  is  loaded  or  not,  he  commits 

a  lilt. 

To  constitute  an  assault,  however,  it  is  unnecessary  that  there  be 
an  actual  or  constructive  intent  to  hurt  anyone  or  a  believed  ability 
to  inflict  such  hurt. 

If  there  be  to  the  person  set  upon  an  apparent  present  intent  to 
injure,  coupled  with  an  <  ut  ability  to  do  so,  it  is  suih- 

cient. 

The  better  opinion,  however,  is  to  the  eff<  a  jverson  pre- 

sents a  gun  at  another,  or  threatens  him  with  a  stick  or  other 
weapon,  and  thereby  reasonably  puts  him  in  fear  and  causes  him 
to  act  on  the  defensive,  or  I  .  there  is  an  assault,  whether 

I  •  injure  or  not.  In  a  comparatively 
late  BCassaehuE  it  was  held  that  a  man  who  pointed  an  un- 

loaded gun  at  and  It,  although  he  may 

have  known  that  it  was  not  loaded  and  may  have  had  no  intention 
to  injure.    "It  is  not  th*  bent  of  tl  ag  party,"  said 

the  court,  "nor  the  undisclosed  fact  of  his  ability  or  inability  to 


208  '    \L  FOR  COUBTS-MAETIAL. 

commit  a  battery,  that  is  material,  but  what  his  conduct  and  the 
attending  circumstances  denote  at  the  time  t<>  the  party  assaulted. 
1  f  to  him  they  indicate  an  attack,  he  is  justified  in  resorting  to  defen- 
sive action.  The  same  rule  applies  to  the  proof  necessary  to  sustain 
iplaint  for  an  assault.  It  is  the  outward  demonstration 
that  mischief  which  is  punished  as  a  breach  of  the 

•     (Clark  and  .Marshall,  pp.  277,  l>78.) 
If  the]  '     tion  of  violence,  coupled  with  an  ap- 

flict  the  injury,  so  as  tat  whom 

it  is  directed  reasonably  to  fear  the  injury  unless  he  retreat  to  secure 
afety,  and.  under  such  circumstances  he  -led  to  retreat 

oid  an  impending  danger,  the  assault  is  complete,  though  the 
assailant  may  never  have,  been  within  the  actual  striking  distance  of 
the  person  assailed.     (Clark  and  Marshall,  p.  281.  note.) 
There  must,  however,  be  an  apparent  present  ability.    To  aim  a 
■•:  at  a  man  at  such  a  distance  that  it  clearly  could  not  injure 
would  not  be  an  assault. 

A  battery  is  an  assault  in  which  force  is  applied,  by  material 
agencies,  to  the  person  of  another,  either  mediately  or  immediately. 
Thus,  it  is  a  battery  to  spit  on  another;  to  push  a  third  person 
inst  him;  to  set  a  dog  at  him  which  bites  him;  to  cut  his  dress 
while  he  is  wearing  it,  though  without  touching  or  intending  to 
touch  his  person;  to  shoot  him;  and  to  cause  him  to  take  poison. 
So  it  is  a  battery  for  a  man  to  fondle  against  her  will  a  woman 
not  his  wife.  The  force  may  be  applied  through  conductors  more 
or  less  close.  Thus,  to  strike  the  dress  of  the  person  assailed,  or 
the  horse  on  which  he  is  riding,  or  the  house  in  which  he  resides, 
may  be  as  much  a  battery  as  to  strike  his  face;  and  sending  an 
explosive  machine  by  express  from  New  York  to  San  Francisco 
be  as  much  a  battery  as  taking  it  to  San  Francisco  in  person. 
It  is  not,  however,  a  battery  to  lay  hands  on  another  to  attract  his 
attention,  or  in  a  party  falling  to  seize  another  for  support.  Send- 
ing a  missile  into  a  crowd  also  is  a  battery  on  anyone  whom  the 
ile  hits;  and  so  is  the  use,  on  the  part  of  one  who  is  excused 
in   i  .  of  more  force  than  is  required.      (Wharton,  vol.  1, 

pp.  566,  567.) 

1.  Assault  With  Intent  TO  MUEDEB. 

This  is  an  assault  aggravated  by  the  concurrence  of  a  specific  intent 
to  murder;  in  other  words,  it  is  an  attempt  to  murder. 

As  in  other  attempts  there  must  he  an  overt  act.  beyond  mere  prep- 
aration or  threats,  or  an  attempt  to  make  an  attempt. 

•Id  not  an  assault  with  intent  to  murder  where  the 

•  lant  drew  a  pistol  from  his  hip  pocket,  but  because  of  its  be- 

coming  caught  in  the  lining  of  his  coat,  did  not  make  any  actual 


PUNITIVE    ARTICLES.  209 

attempt  to  inflict  an  injury  with  the  pistol  on  the  person  alleged  to 
have  been  assaulted. 

To  constitute  an  assault  with  intent  to  murder  by  firearms  it  is 
not  necessary  that  the  weapon  be  discharged;  and  in  no  case  is  the 
actual  infliction  of  injury  necessary.  Thus,  where  a  man  with  intent 
to  murder  another  deliberately  assaults  him  by  shooting  at  him  the 
fact  that  lie  misses  does  not  alter  the  character  of  the  offense. 

Where  the  intent  to  murder  exists,  the  fact  that  for  some  reason 
unknown  the  actual  consummation  of  the  murder  is  impossible  by 
the  means  employed  does  not  prevent  the  person  using  them  from 
being  guilty  of  an  assault  with  intent  to  commit  murder  where  the 
means  are  apparently  adapted  to  the  end  in  view.  Thus,  where  a 
soldier  intending  to  murder  another  loads  his  rifle  with  what  he  be- 
lieves to  be  a  good  cartridge  and  aims  and  discharges  his  rifle  at  the 
other,  it  is  no  defense  that  he,  by  accident,  got  hold  of  a  cartridge 
so  defectively  loaded  that  the  bullet  did  not  leave  the  gun. 

In  order  to  constitute  this  offense  the  specific  intent  to  murder 
must  exist,  and  the  facts  must  be  such  that  had  death  been  caused 
by  the  act  the  offense  would  have  been  murder,  but  the  converse  of 
this  latter  proposition  is  not  always  true,  as  a  man  may  be  guilty  of 
murder  without  intending  .to  kill.  Thus,  where  a  workman  recklessly 
throws  a  heavy  object  from  the  roof  of  a  building  into  a  street  where 
he  knows  people  are  likely  to  be  passing  and  thereby  kills  a  person, 
he  may  be  guilty  of  murder:  but  where  the  person  is  merely  injured, 
the  offense  of  assault  with  intent  to  commit  murder  is  not  committed. 

To  constitute  this  offense  there  must  be  a  specific  intent  to  murder 
the  person  assaulted  and  this  intent  must  exist  at  the  time  of  the 
It. 

A  general  felonious  intent  of  a  specific  design  to  commit  another 
felony  is  not  sufficient,  and  where  a  person  is  too  drunk  to  entertain 
the  specific  intent  the  offense  is  not  murder.     But  where  th 
intending  to  murder  A  shoots  at  and  wounds  B.  mistaking  him  for 
A.  he  is  guilt  5  'ting  B  with  intent  to  murder  him;  so 

where  a  man  fires  into  a  group  with  intent  to  murder  some  one  he 
:ilty  of  an  assault  with  intent  to  murder  each  member  of  the 
group. 

2.    ' 

-  mlt   with    intent  to   murder   in  the 
lack  -r\    to  constitute  the  latter 

I*  is  an  attempt  to  take  human  life  in  a  sudd  f  passion. 

'I    •    specific  intent  to  kill  i  and  the  act  must  b 

und<  ■  ;.   at  had  dei  offense  v.  • 

: 


270  MANUAL  FOE  COURTS-MARTIAL. 

"What  has  been  said  un<  !■  alt  with  intent  to  commit 

murder  applies  to  the  offense  of  assault  with  intent  to  commit  man- 
slaughter. 

3.  Assavit  with  Intent  to  Commit  RAfe. 

This  is  an  attempt  to  oommit  rape  in  which  the  overt  act  amounts 
to  an  assault  upon  the  woman  intended  to  be  ravished.  Indecent 
advances,  importunities  however  earnest;  mere  threats;  and  actual 
attempts  to  rape  wherein  the  overt  act  is  not  an  assault  do  not  am 
to  this  offense.  Thus,  where  a  man,  intending  to  rape  a  woman, 
stealthily  concealed  himself  in  her  room  to  await  a  favorable  oppor- 
tune ite  his  design  but  was  discovered  and  lied,  it  was 
held  that  he  was  not  guilty  of  an  assault  with  intent  to  commit  rape. 

No  actual  touching  is  necessary.  Thus  where  a  man  entered  a 
woman's  room  and  got  in  the  bed  whore  she  was  and  within  reach  of 
her  person  for  the  purpose  of  ravishing  her  he  commits  the  offense, 
although  he  did  not  touch  the  woman. 

This  offense  may  be  committed  on  a  woman  who  is  insane  or  an 
imbecile,  or  while  she  is  dragged  or  intoxicated,  or  asleep,  provided 
the  offense  would  be  rape  if  the  purpose  was  carried  out.  But  where 
an  attempt  to  have  connection  with  a  woman  capable  of  consenting 
and  whose  consent  thereto  has  been  obtained  by  fraud  there  can  be 
no  assault  with  intent  to  commit  rape. 

Thus  an  attempt  to  have  connection  with,  a  woman  who  has  con 
sented  thereto  in  the  belief  that  one  personating  her  husband  is  her 
husband  can  not  be  an  assault  with  intent  to  commit  rape. 

The  intent  to  have  carnal  knowledge  of  the  woman  assaulted  by 
force  and  without  her  consent  must  exist  and  concur  with  the  assault. 
In  other  words,  the  man  must  intend  to  overcome  any  resistance  by 
force,  actual  or  constructive,  and  penetrate  the  woman's  person. 
Any  less  intent  will  not  suffice.  Thus  where  a  man  assaults  a  «  ■■ 
his  purpose  being  to  seduce  her,  the  offense  is  not  committed. 

Once  an  assault  with  intent  to  commit  rape  is  made  it  is  no  defi 
that  the  man  voluntarily  desisted  or  that  the  woman  yields  her 
sent  to  the  connection,  so  that  no  rape  is  committed. 

4.  Assavit  WITH  INTENT  to  Bob. 

This  is  an  attempt  to  commit  robbery  wherein  the  overt  act  ] 
assault  and  the  concurrent  intent  is  forcibly  tc  take  and  carry  a 
property  of  the  per  lied  from  his  person  or  in  his  presence 

•lence  or  putting  him  in  fear. 

The  accused  can  not  set  up  as  a.  defense  that  he  intended  to  take 
only  money  and  that  the  person  ho  attempt  d  to  rob  had  no 


PUNITIVE    ARTICLES.  271 

5.  Assault  With  1-  •umit  Sodomy. 

Sodomy  consists  in  sexual  connection  with  any  brnte  animal,  or 
in  sexual  connection,  per  anum,  by  a  man  with  any  man  or  woman. 
(Wharton,  voL  2,  p. 

<  ration  of  the  mouth  <>!'  the  person  constitutes  th 

Both  parties  are  liable  as  principals  if  each  is  adult  an 
but  if  either  be  a  boy  of  tender  age  the  adult  alone  is  liable,  and 
although  the  boy  consent  the  act  is  still  by  force. 

Penetration  alone  is  sufficient. 

An  assault  with  intent  to  commit  this  offense  consists  of  an  assault 
on  a  human  being  with  intent  to  penetrate  his  or  her  person  per  anum. 

That  which  has  been  before  stated,  with  regard  to  the  evidence 
and  manner  of  proof  in  cases  of  rape,  ought  especially  to  be  observed 
upon  a  trial  for  this  heinous  offense.  When  strictly  and  impartially 
proved  the  offense  well  merits  strict  and  impartial  punishment; 
but  it  is  from  its  nature  so  easily  charged  and  the  negative  so 
difficult  to  be  proved  that  the  accusation  ought  clearly  to  be  made 
out.  The  evidence  shoidd  be  plain  and  satisfactory  in  proportion 
as  the  crime  is  detestable. — 4  Bla.  Com.,  215.  (Archbold's  Criminal 
Practice  ami  Pleading.  Tth  ed.,  roL  2,  pp.   L85,   L86,  note.) 


(1)  Assault  with  intent  to  murder: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  specific  intent  of  the  accused 
to  kill  such  person,  and  that  the  killing  would  have  been  murder 
had  death  resulted. 

[Nona. — Both  the  specific  intent  and  the  malice  man  be  Inferred  from  t1 

of  a  deadly  weapon  in  a  way  calculated  to  cause  death,  or  from 
other  deliberate  acts  of  violence  likely  to  result  in  death  or  great  bodily  harm.] 

(2)  Assault  with  intent  to  commit  manslaughter: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the  exist- 
ence at  the  time  of  the  assault  of  the  specific  intent  of  the  accused 
to  kill  such  person  and  that  the  killing  would  have  been  \    ! 

Laughter  had  death  resulted. 

i ult  with  intent  to  commit  rape: 
(a)  That  the  led. 

(&)  'i  ind  circumstances  of  the  case  indicating  the  exist- 

the  intent  of  the  accused  to  p 
h   female  at   all   events  by  overcoming  any 
tance  on  her  part  by  actual  or  constructive  force;  and 


272  MANUAL  POB  COVKTS-MAKTIAL. 

and  cir<  umstances  indicating  that  the  offense  of  rape  would  have 
committed   had   the    accused   succeeded    in   carrying*  out  his 
purp< 

(  1 1  Assault  with  intent  to  roh: 

(a)  That  the  accused  assaulted  as  alleged. 

(b)  ':  drcumstances  of  the  case  indicating  the  exist- 
at  the  time  of  the  assault  of  the  intent  on  the  part  of  the  accused 

:i  property  of  such  person  from  his  person  or  in  his 
•  violence  or  putting  him  in  fear. 
lilt  with  intent  to  commit  sodomy: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the  con- 
ent  intent  to  commit  the  offense  on  such  person. 

:  B   INTENT  TO  DO  BODILY  HARM. 

This  is  an  assault  aggravated  by  the  specific  present  intent  to  do 
bodily  harm  to  the  person  assaulted  by  means  of  the  force  employed. 

It  is  not  necessary  that  any  battery  actually  ensue,  or,  if  bodily 
liana  is  actually  inflicted,  that  it  be  of  the  kind  intended.  Where 
the  accused  acts  in  reckless  disregard  for  the  safety  of  others  it  is 
not  a  defense  that  he  did  not  have  in  mind  the  particular  person 
injured. 

PBOOF. 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(&)  The  facts  and  circumstances  of  the  case  indicating  the  con- 
current intenl  thereby  (<>  do  bodily  harm  to  such  person.  (/'.  M, 
<  .  M.,No.  I) 

NINETY-FOURTH  ARTICLE. 

444.  Any  person  subject  to  military  law  who- makes  or  causes  to  lie  made  any 
claim  against  the  United  Stares,  or  any  officer  thereof,  knowing  such  claim  to  be 
false  or  fraudulent;  or 

[21  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil  or 

military  service  thereof,  for  approval  or  payment,  any  claim  against  the  United 

States,  or  any  offl  '.  knowing  such  claim  to  be  false  or  fraudulent;  or 

[3]  Who  enters  Into  any  agreement  or  conspiracy  to  defraud  the  United 

a  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  payment  of 

any  false  or  fraudulent  claim;  or 

[4]  Who,  for  the  purpose  <>f  obtaining,  or  aiding  others  to  obtain,  the  ap- 

proval,   allowance,   or   payment  of  any   claim   against    the    United    States  or 

y  officer  thereof,  makes  or  esc-.,  or  procures,  or  advises  the  making 

of,  any  writing  or  Other  paper,  knowing  (lie  same  to  contain  any  false 

or  fraudulent  statements ;  or 

[5]  Who,  f>>\-  ill-  purpose  of  -  tiers  to  obtain,  the  ap- 

proval,  allowance,  or  payment  of  any  claim  againsl   the  United  states  or  any 
officer  thereof,  makes,  or  procures,  or  advises  the  making  of,  any  oath  to  any 
■  to  any  writing  or  "tli<!-  paper  knowing  such  oath  to  be  raise;  or 


PUNITIVE   ARTICLES.  273 

[6]  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  ap- 
proval, allowance,  or  payment  of  any  claim  against  the  United  States  or  any 
officer  thereof,  forges  or  counterfeits,  or  procures,  or  advises  the  forging  or 
counterfeiting  of  any  signature  upon  any  writing  or  other  paper,  or  uses,  or 
procures,  or  advises  the  use  of  any  such  signature,  knowing  the  same  to  be 
forged  or  counterfeited ;  or 

[7]  "Who,   having  charge,   possession,  custody,  or  control  of  any  money  or 

other  property  of  the  United   States,  furnished  or  intended  for  the  military 

ie  thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any  person 

having  authority  to  receive  the  same,  any  amount  thereof  less  than  that  for 

which  he  receives  a  certificate  or  receipt ;  or 

[S]  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the  re- 
ceipt of  any  property  of  the  United  States  furnished  or  intended  for  the  mili- 
tary service  thereof,  makes  or  delivers  to  any  person  such  writing,  without 
having  full  knowledge  of  the  truth  of  the  statements  therein  contained  and 
with  intent  to  defraud  the  United  States ;  or 

[9]  Who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  applies 
to  his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  disposes  of  any 
ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence  stores,  money, 
or  other  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof;  or 

[10}  Who  knowingly  purchases  or  receives  in  pledge  for  any  obligation  or 
indebtedness  from  any  soldier,  officer,  or  other  person  who  is  a  part  of  or 
employed  in  said  forces  or  service,  any  ordnance,  arms,  equipment,  ammuni- 
tion, clothing,  subsistence  stores,  or  other  property  of  the  United  States,  such 
soldier,  officer,  or  other  person  not  having  lawful  right  to  sell  or  pledge  the 
same : 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprisonment,  or  by 
such  other  punishment  as  a  court-martial  may  adjudge,  or  by  any  or  all  of 
said  penalties.  And  if  any  person,  being  guilty  of  any  of  the  offenses  afore- 
said while  in  the  military  service  of  the  United  States,  receives  his  discharge 
or  is  dismissed  from  the  service,  he  shall  continue  to  be  liable  to  be  arrested 
and  held  for  trial  and  sentence  by  a  court-martial  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such  discharge  nor  been  dismissed. 

Definitions  and  Principles. 

See  the  respective  headings  under  which  the  defenses  defined  by 
this  article  are  treated  below. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
article  2. 

The  article  embraces  a  large  number  of  offenses  which  may  be 
treated  under  headings,  corresponding  to  the  numbered  paragraphs 
of  the  article,  as  follows: 

I.  Making  or  causing  to  be  made  a  false  or  fraululent  claim. 

II.  Presenting  or  causing  to  be  presented  for  approval  or  payment 
a  false  or  fraudulent  claim. 

53915°     L8 19 


274  MANUAL  FOE  COURTS-MARTIAL. 

III.  Entering  into  an  agreement  or  conspiracy  to  defraud  the 
United  States  through  false  claims. 

i  V.  Making,  using,  procuring,  or  advising  the  making  or  use  of  a 
false  writing  or  other  paper  in  connection  with  claims. 

V.  False  oath  in  connection  with  claims. 

VX  Forgery,  etc,  of  signature  in  connection  with  claims. 

Y  II.  Delivering  less  than  amount  called  for  by  receipt. 

VU1.  Making  or  delivering  receipt  without  having  knowledge 
that  the  same  is  true. 

IX.  Embezzlement,  misappropriation,  sale,  etc.,  of  military  prop- 
erty. 

X.  Purchasing  or  receiving  in  pledge  of  military  property. 

I.    MAKING  OR  CAUSING  TO  BE  MADE  A  FALSE  OR  FRAUDULENT  CLAIM. 

Making  a  claim  is  a  distinct  act  from  presenting  it.  A  claim  may 
be  made  in  one  place  and  presented  in  another.  This  section  does  not 
relate  to  personal  claims  against  an  officer  of  the  United  States,  but 
to  claims  against  the  United  States  made  to  such  officer  or  otherwise. 
It  is  not  necessary  that  the  claim  be  allowed  or  paid  nor  that  it  be 
made  by  the  person  to  be  benefited  by  the  allowance  or  payment. 
The  claim  must  be  made  or  caused  to  be  made  with  knowledge  of  its 
fictitious  or  dishonest  character.  This  does  not  include  claims,  how- 
ever groundless  they  may  be,  that  are  honestly  believed  by  the  maker 
to  be  valid,  nor  claims  that  are  merely  made  negligently  or  without 
ordinary  prudence,  but  it  does  include  claims  made  by  a  person  who 
has  the  belief  of  the  false  character  of  the  claim  that  the  ordinarily 
prudent  man  would  have  entertained  under  the  circumstances.  (See 
also  the  discussion  under  "  II "  of  this  article.) 

An  instance  of  making  a  false  claim  would  be  where  an  officer 
haying  a  claim  respecting  property  lost  in  the  military  service  know- 
ingly includes  articles  that  were  not  in  fact  lost  and  submits  such 
claim  to  his  commanding  officer  for  the  action  of  the  board. 


(/r)  That  the  accused  made  or  caused  to  be  made  a  certain  claim 
against  the  United  States  as  alleged. 

(b)  That  such  claim  was  false  or  fraudulent  in  the  particulars 
specified. 

(c)  That  when  the  accused  made  the  claim  or  caused  it  to  be  made 
he  knew  that  it  was  false  or  fraudulent  in  such  particulars. 

(d)  The  amount  involved,  as  alleged. 


PUNITIVE   ARTICLES.  275 

II.  PRESENTING  OR  CAUSING  TO  BE  PRESENTED  FOB  APPROVAL  OR  PAYMENT 
A  FALSE  OR  FRAUDULENT  CLAIM. 

See  second  paragraph  of  the  article  and  matter  under  heading  "  I." 

The  claim  must  be  presented  to  some  person  having  authority  to 
approve  or  pay  it.  False  and  fraudulent  claims  include  not  only 
those  containing  some  material  false  statement,  but  also  claims  that 
the  person  presenting  knows  to  have  been  paid,  or  for  some  other 
reason  knows  he  is  not  authorized  to  present  or  receive  money  on. 

Where  an  officer  knows  that  a  certain  duly  assigned  pay  account 
of  his  is  outstanding  and  that  the  assignee  can  collect  on  it  if  he 
chooses  to  do  so,  it  is  no  defense  to  a  charge  against  such  officer  of 
presenting  for  payment  a  second  account  covering  the  same  period 
as  the  assigned  account  that  the  second  account  was  presented  rely- 
ing on  the  assignee's  statement  that  he  would  not  present  the  first. 
But  where  the  accused  has  good  grounds  to  believe  and  actually  does 
believe  when  he  presents  the  second  account  that  the  assigned  account 
had  been  canceled  or  surrendered  by  the  assignee,  his  presentation 
of  the  second  claim  does  not  constitute  this  offense.  A  cancellation 
or  surrender  of  the  first  account  after  the  presentation  of  the  second 
account  is,  of  course,  no  defense  to  the  charge. 

Presenting  to  a  paymaster  a  false  final  statement,  knowing  it  to 
be  false,  is  an  example  of  an  offense  under  this  paragraph. 


(a)  That  the  accused  presented  or  caused  to  be  presented  for  ap- 
proval or  payment  to  a  certain  person  in  the  civil  or  military  service 
of  the  United  States,  a  certain  claim  against  the  United  States,  as 
alleged. 

(b)  That  such  claim  was  false  or  fraudulent  in  the  particulars 
alleged. 

(c)  That  when  the  accused  presented  the  claim  or  caused  it  to  be 
presented  he  knew  it  was  fictitious  or  dishonest  in  such  particulars. 

(d)  The  amount  involved,  as  alleged. 

m.   ENTERING    INTO    AN    AGREEMENT    OR    CONSPIRACY    TO    DEFRAUD    THE 
UNITED   STATES  THROUGH  FALSE  CLAIMS. 

See  the  third  paragraph  of  this  article. 

A  conspiracy  is  the  corrupt  agreeing  together  of  two  or  more  per^ 
sons  to  do  by  concerted  action  something  unlawful  either  as  a  mean" 
end.    (  Bishop,  vol.  2,  p.  98.) 

The  mere  entry  into  a  corrupt  agreement  for  the  purpose  of  de- 
frauding the  United  States  through  any  of  the  means  specified  con- 
stitutes the  offense.     An  example  of  this  offense  is  an  agreement  be 


270  MANUAL   FOR   COURTS-MABTIAL, 

tween  a  contractor  and  an  officer  i<>  defraud  the  United  States  by 

means  of  a  padded  voucher  t<>  be  c<  rtified  as  correct  by  the  officer. 


I     I   That  the  accused  and  one  or  more  other  persons  named  or 
bed  entered  into  an  agreement, 
i  That  the  object  of  the  agreement  was  to  defraud  the  United 

(c)  That  the  means  by  which  the  fraud  was  to  be  effected  were 
to  obtain  or  assist  certain  other  persons  to  obtain  the  allowance  or 
payment  of  a  certain  false  or  fraudulent  claim,  as  specified. 

{<>')  The  amount  involved,  as  alleged. 

IV.    MAKING,  USING,  PROCURING,  OK  ADVISING  THE  MAKING  OR  USE  OF  A 
I  AL8E  WRITING  OK  OTHER  PAPER  IN  CONNECTION  WIT  li   CLAIMS. 

See  the  fourth  paragraph  of  the  article,  and  matter  under  head- 
ings -I"  and  "II." 

It  is  not  necessary  to  the  offense  of  making  a  writing  knowing  it 
to  contain  false  or  fraudulent  statements  that  such  writing  be  used 
or  attempted  to  be  used,  or  that  the  claim  in  support  of  which  it  was 
made  be  presented  for  approval,  allowance,  or  payment.  The  false 
or  fraudulent  statement  should,  however,  be  material. 

In  the  offense  of  procuring  the  making  or  use  of  the  writing  or 
other  paper,  the  paper  must  be  made  or  used;  but  in  the  offense  of 
advising  such  acts  the  making  or  use  of  the  paper  is  not  necessary. 
Examples  of  offenses  under  this  paragraph  are:  Willfully  inducing 
another  to  make  to  the  United  States  a  lease  of  premises  containing 
a  false  and  fraudulent  statement  with  a  view  of  obtaining  the  allow- 
ance of  a  false  claim  for  rent  against  the  United  States;  falsification 
by  a  soldier  of  an  entry  in  the  company  clothing  book  for  the  pur- 
pose described  in  this  paragraph  of  the  article;  and  the  making  by 
an  officer  in  his  pay  account  of  false  and  fraudulent  statements  with 
a  view  to  securing  the  payment  of  such  account. 


((/.)  Thai  the  accused  made  or  used  or  procured  or  advised  the 
making  or  use  of  a  certain  writing  or  other  paper,  as  alleged. 

( i> )  That  certain  statements  in  such  writing  or  other  papers  were 
false  or  fraudulent ,  as  alleged. 

(<  )   That  the  accused  knew  this. 

(d)  The  facts  and  circumstances  indicating  that  the  act  of  the  ac- 
cused was  for  the  purpose  of  obtaining  or  aiding  certain  others  to 
<obtain  the  approval,  allowance,  or  payment  of  a  certain  claim  or 
claims  against  the  United  States,  as  specified. 

(.  )  The  amount  involved,  as  alleged. 


PUNITIVE   ARTICLES.  277 

V.  FALSE  OATH  IN  CONNECTION   WITH  CLAIMS. 

See  the  fifth  paragraph  of  the  article  and  matter  under  headings 
"I,"  "II,"  and  "IV." 

PROOF. 

(a)  That  the  accused  made  or  procured  or  advised  the  making  of 
an  oath  to  a  certain  fact  or  to  a  certain  writing  or  other  paper,  as 
alleged. 

(b)  That  such  oath  was  false,  as  alleged. 

(c)  That  the  accused  knew  it  was  false. 

(d)  The  facts  and  circumstances  of  the  case  indicating  that  the 
act  Avas  for  the  purpose  of  obtaining  or  aiding  certain  others  to  ob- 
tain the  approval,  allowance,  or  payment  of  a  certain  claim  or  claims 
against  the  United  States,  as  alleged. 

VI.   FORGERY,  ETC.,  OF  SIGNATURE  IN   CONNECTION   WITH   CLAIMS. 

See  the  sixth  paragraph  of  the  article  and  matter  under  headings 
u  1  "  and  "  II  "  above. 

The  term  "  forges  or  counterfeits  "  includes  any  fraudulent  making 
of  another's  signature,  whether  an  attempt  is  made  to  imitate  the 
handwriting  or  not. 

PBOOF. 

(a)  That  the  accused  forged  or  counterfeited  the  signature  of  a 
certain  person  on  a  certain  writing  or  other  paper  or  that  he  pro- 
cured or  advised  the  act  as  specified;  or  that  he  used  the  forged  or 
counterfeited  signature  of  a  certain  person  or  procured  or  advised  its 
use.  knowing  such  signature  to  be  forged  or  counterfeited,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  that  his 
act  was  for  the  purpose  of  obtaining  or  aiding  certain  others  to 
obtain  the  approval,  allowance,  or  payment  of  a  certain  claim  or 
claims  against  the  United  States  as  alleged. 

VII.   DELIVERING    LESS    THAN    AMOUNT   CALLED  FOR   BY   RECEIPT. 

i  ath  paragraph  of  the  article. 

It  is  immaterial  in  this  <  whal  means,  whether  by  deceit, 

collusion,  or  otherwise,  the  accused  effected  the  transaction,  or  what 
his  purpose  was  in  so  doing. 
Instances  of  this  offei  se  are : 

tor  gave  a  receipt  for  a  greater  amount  than  was  due 
him  from  the  United  States.  Thereupou  the  disbursing  officer  gave 
him  the  full  amount  called  for  by  the  receipt,  bul  received  back  from 
the  contractor  the  er  the  amount  actually  due 


278  MANUAL  FOB  COURTS-MAI! T1AL. 

A  disbursing  officer,  having  delivered  to  a  creditor  of  the  United 
Stat  >ney  than  was  actually  due.  received  a  receipt;  signed 

in  blank  by  i\w  creditor,  ■which  he  afterwards  completed  by  writing 
the  true  amount  due. 


(</)  That  the  accused  had  charge,  possession,  custody,  or  control 
of  certain  money  or  property  of  the  United  States  furnished  or 
intended  for  the  military  service  thereof,  as  alleged. 

(b)  That  he  obtained  a  receipt  for  a  certain  amount  or  quantity 
of  such  money  or  property,  as  alleged. 

(i  )  That  for  such  receipt  he  knowingly  delivered,  or  caused  to 
be  delivered,  to  a  certain  person  having  authority  to  receive  it  an 
amount  or  quantity  of  such  money  or  property  less  than  the  amount 
or  quantity  thereof  specified  in  such  receipt. 

{</)  The  value  of  the  undelivered  money  or  property,  as  alleged. 

VIII.    MAKING    OR     DELIVERING     RECEIPT     WITHOUT     HAVING     KNOWLEDGE 
THAT  THE  SAME  IS  TRUE. 

See  the  eighth  paragraph  of  the  article. 

The  following  is  an  instance  of  an  offense  under  this  paragraph : 
An  officer,  being  in  collusion  with  a  contractor,  knowingly  received 
from  him  an  amount  of  supplies  intended  for  the  military  service 
less  than  the  amount  shown  on  the  receipt  for  the  supplies,  which 
it  was  certified  to  by  the  officer  and  delivered  to  the  contractor 
with  the  intent  to  defraud  the  United  States. 


(a)  That  the  accused  was  authorized  to  make  or  deliver  a  certifi- 
cate of  the  receipt  from  a  certain  person  of  certain  property  of  the 
United  States  furnished  or  intended  for  the  military  service  thereof. 
as  alleged. 

(b)  That  he  made  or  delivered  to  such  person  such  certificate,  as 
alleged. 

(c)  That  such  certificate  was  made  or  delivered  without  the  ac- 
cused  having  full  knowledge  of  the  truth  of  a  certain  material  state- 
ment or  statements  therein. 

(</)  The  facts  and  circumstances  indicating  that  his  act  was  done 
with  intent  to  defraud  the  United  States. 
(e)  The  amount  involved,  as  alleged. 

IX.    EMBEZZLEMENT,     MISAPPROPRIATION,    SALE,    ETC.,    OF    MILITARY 
PROPERTY. 

For  definitions  and  principles  respecting  larceny  and  embezzle- 
ment, see  headings  u  V  ;'  and  "  VII"  under  the  ninety-third  article. 


PUNITIVE   ARTICLES.  279 

Misappropriating  is  devoting  to  any  unauthorized  purpose.  The 
misapplication  meant  is  whore  such  purpose  is  for  the  party's  own 
use  or  benefit. 

For  the  definition  of  "  disposes  of,"  see  heading  i;  I "  under  the 
eightieth  article. 

The  larct  ny,  embezzlement,  etc.,  must  be  of  the  particular  kind  of 
property  mentioned  in  the  article.  Post  exchange  and  company 
funds  and  money  appropriated  for  other  than  the  military  service 
do  not  come  within  the  description  "money  of  the  United  States 
furnished  or  intended  for  the  military  service  thereof."  The  term 
"  embezzlement "  as  used  in  this  article  does  not  include  acts  or 
omissions  not  within  the  definition  of  embezzlement,  but  wThich  are 
expressly  declared  by  statute  to  be  embezzlements.  Such  statutory 
embezzlements  are  chargeable,  however,  under  the  ninety-sixth  article. 

The  misappropriation  of  the  property  or  money  need  not  be  for 
the  benefit  of  the  accused ;  the  words  "  to  his  own  use  and  benefit " 
qualifies  the  words  "  applies  only." 

Instances  of  misappropriation  are: 

An  officer  of  the  Quartermaster's  Department  used  teams,  tools, 
and  other  public  property  in  his  possession  as  such  officer  in  erecting 
buildings,  etc.,  for  the  benefit  of  an  association  composed  mainly  of 
civilians,  of  which  he  was  a  member. 

An  officer  of  the  Quartermaster's  Department  loaned  public  prop- 
erty (corn)  to  a  contractor  for  the  purpose  of  enabling  him  to  fill 
a  contract  made  with  the  United  States  through  another  officer. 

An  instance  of  misapplication  is  the  temporary  use  by  a  quarter- 
master of  Government  horses  in  his  charge  to  draw  his  private  car- 
riage on  nonpublic  business. 


In  larceny  and  embezzlement: 

(a)  See  proof  under  headings  "  V  "  and  "  VII "  under  the  ninety  - 
third  article. 

(b)  That  the  property  belonged  to  the  United  States  and  that  it 
was  furnished  or  intended  for  the  military  service  thereof. 

In  misappropriation  and  misapplication: 

(a)  That  the  accused  misappropriated  or  applied  to  his  own  use 
certain  property  in  the  manner  alleged. 

(b)  That  such  property  belonged  to  the  United  States  and  that 
it  was  furnished  or  intended  for  the  military  service  thereof. 

(c)  The  facts  and  circumstances  of  the  case  indicating  that  the 
act  of  the  accused  was  will  fully  and  knowingly  done. 

(//)  The  value  of  the  property,  as  specified. 


280  MANUAL   FOK    COURTS  MABTIAJL, 

In  wrongful  sale  or  disposition: 

(a)  That  the  accused  sold  or  in  a  certain  manner  disposed  of  cer- 
tain property,  as  specified. 

(b)  That  such  property  belonged  to  the  United  States  and  that  it 
was  furnished  or  intruded  for  the  military  service  thereof. 

(c)  The  facts  and  circumstances  indicating  that  the  act  was  know- 
ingly or  wrongfully  done. 

(d)  The  value  of  the  property,  as  specified. 

X.   PURCHASING   OB   RECEIVING   IN   PLEDGE  OF  MILITARY  PROPERTY. 

See  the  tenth  paragraph  of  the  article  and  matter  under  fifty- 
fifth  article. 

To  constitute  this  offense  the  accused  must  know. not  only  that  the 

person  selling  or  pawning  the  property  was  in  one  of  the  specified 

classes  but  that  the  property  was  the  property  of  the  United  States. 

to  "knowingly"  see  "Definitions  and  principles"  under  fifty- 

fifth  article. 

PROOF. 

(a)  That  the  accused  purchased,  or  received  in  pledge,  for  a  cer- 
tain obligation  or  indebtedness  certain  military  property  of  the 
United  States,  as  alleged,  knowing  it  to  be  such  property. 

(b)  That  such  property  was  purchased  or  so  received  in  pledge 
from  a  certain  soldier,  officer,  or  other  person  who  was  a  part  of  or 
employed  in  the  military  service  of  the  United  States,  as  alleged,  and 
that  the  accused  knew  the  person  selling  or  pledging  the  property  to 
be  such  soldier,  officer,  or  other  person. 

(c)  That  such  soldier,  officer,  or  other  person  had  not  the  lawful 
right  to  sell  or  pledge  such  property. 

(d)  The  value  of  the  property,  as  alleged. 

XIXETY-FIFTH  ARTICLE. 

445.  Any  officer  or  cadet  who  is  convicted  of  conduct  unbecoming  an  officer  and 
a  gentleman  shall  bo  dismissed  from  the  service. 

Definitions  and  riuxciPLEs. 

The  conduct  contemplated  is  action  or  behavior  in  an  official 
capacity  which,  in  dishonoring  or  disgracing  the  individual  as  an 
officer,  seriously  compromises  his  character  and  standing  as  a  gentle- 
man, or  action  or  behavior  in  an  unofficial  or  private  capacity  which, 
in  dishonoring  or  disgracing  the  individual  personally  as  a  gentle- 
man, seriously  compromises  his  position  as  an  officer  and  exhibits 
him  as  morally  unworthy  to  remain  a  member  of  the  honorable  pro- 
fession of  arms.     ( Winthrop,  p.  HOG.) 

There  arc  certain  moral  attributes  common  to  the  ideal  officer  ami 
the  perfect  gentleman,  a  lack  of  which  is  indicated  by  acts  of  dis- 


PUNITIVE   ATtTTCLEe.  281 

honesty  or  unfair  dealing;  of  indecency  or  indecorum ;  of  lawlessness, 
injustice,  or  cruelty. 

Not  every  one  is  or  can  be  expected  to  meet  ideal  standards  or  to 
possess  the  attributes  in  the  exact  degree  demanded  by  the  standards 
of  his  own  time;  but  there  is  a  limit  of  tolerance  below  which  the  in- 
dividual standards  in  these  respects  of  an  oflicer  or  cadet  can  not  fall 
without  his  being  morally  unfit  to  be  an  officer  or  cadet  or  to  be  con- 
sidered a  gentleman. 

This  article  contemplates  such  conduct  by  an  officer  or  cadet  which, 
taking  all  the  circumstances  into  consideration,  satisfactorily  shows 
such  moral  unfitness. 

This  article  includes  acts  made  punishable  by  any  other  article  of 
war,  provided  such  acts  amount  to  conduct  unbecoming  an  officei  and 
a  gentleman :  thus,  an  officer  who  embezzles  military  property  vio- 
lates both  this  and  the  preceding  article. 

Instances  of  violation  of  this  article  are: 

Knowingly  making  a  false  official  statement;  dishonorable  neglect 
to  pay  debts:  opening  and  reading  another's  letters;  giving  a  check 
on  a  bank  where  there  were  no  funds  to  meet  it,  and  without  intend- 
ing that  there  should  be;  using  insulting  or  defamatory  language  to 
another  officer  in  his  presence,  or  about  him  to  other  military  per- 
:  being  grossly  drunk  and  conspicuously  disorderly  in  a  public 
place;  public  association  with  notorious  prostitutes;  cruel  treatment 
of  soldiers;  committing  or  attempting  to  commit  a  crime  involving 
moral  turpitude;  failing  without  a  good  cause  to  support  his  family. 

For  other  instances,  see  Digest,  pages  140-143,  and  Winthrop, 
i 107-1115. 

Analysis  and  Proof. 

This  article  applies  to  officers  and  cadets  only. 
The  article  defines  one  offense,  viz: 

I.  CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 


(a)  That  the  accused  did  or  omitted  to  do  the  acts  as  alleged. 
(M  The  circumstances,  intent,  motive,  etc..  as  specified. 

NINETY-SIXTH  ARTICLE. 

446.  Though  m  .  "Mclo*.  all  disorders  and  neglects  to  the 

prejni  d  order  and   military  discipline,  all   .<,ii(i>i<-i   of  a   nature  to 

bring  discredit  upon  the  military  service,  and  ;•:!  i  oof  capital* 


282  MANUAL  FOR  COURTS-MARTIAL. 

of  which  persons  subject  t<»  military  law  may  be  guilty,  shall  be  taken  cognl- 
zance  of  by  a  general  or  special  or  summary  court-martial,  according  to  the 
nature  and  degr t  and  punished  at  the  discretion  of  such  court. 

Definitions  and  Principles. 

See  matter  under  the  respective  headings  under  which  the  offenses 
are  treated. 

Analysis  and  Proof. 

The  article  applies  to  any  person  subject  to  military  law.  See 
article  2.  The  article  embraces  offenses  falling  within  the  classes 
described  therein,  and  not  mentioned  in  the  other  punitive  articles. 
The  offenses  may  be  treated  under  the  following  headings: 

I.  Disorders  and  neglects  to  the  prejudice  of  good  order  and  mili- 
tary discipline. 

II.  Conduct  of  a  nature  to  bring  discredit  upon  the  military 
service. 

III.  Crimes  or  offenses  not  capital. 

I.  DISORDERS  AND  NEGLECTS  TO  THE  PREJUDICE  OF  GOOD  ORDER  AND  MILI- 
TARY DISCIPLINE. 

The  disorders  and  neglects  include  all  acts  or  omissions  to  the 
prejudice  of  good  order  and  military  discipline  not  made  punishable 
by  any  of  the  preceding  articles. 

By  the  term  "  to  the  prejudice,"  etc.,  is  to  be  understood  directly 
prejudicial,  not  indirectly  or  remotely  merely.  An  irregular  or 
improper  act  on  the  part  of  an  officer  or  soldier  can  scarcely  be  con- 
ceived which  may  not  be  regarded  as  in  some  indirect  or  remote 
sense  prejudicing  military  discipline;  but  it  is  hardly  to  be  sup- 
posed that  the  article  contemplated  such  distant  effects,  and  the 
same  is,  therefore,  deemed  properly  to  be  confined  to  cases  in  which 
the  prejudice  is  reasonably  direct  and  palpable.     ( Winthrop,  p.  1123.) 

Instances  of  such  disorders  and  neglects  in  the  case  of  officers  are: 
Disobedience  of  standing  orders,  or  of  the  orders  of  an  officer  when 
the  offense  is  not  chargeable  under  a  specific  article;  allowing  a  sol- 
dier to  go  on  duty  knowing  him  to  be  drunk;  rendering  himself  unfit 
for  duty  by  excessive  use  of  intoxicants;  drunkenness. 

Instances  of  such  disorders  and  neglects  in  the  cases  of  enlisted 
men  are:  Failing  to  appear  on  duty  with  a  proper  uniform;  appear- 
ing with  dirty  clothing;  malingering;  abusing  public  animals;  refus- 
ing to  submit  to  treatment  necessary  to  render  him  fit  for  duty ;  re- 
Fusing  to  submit  to  a  necessary  and  proper  operation  not  endangering 
life  (see  G.  O.  43,  W.  D.,  1906) ;  careless  discharge  of  firearms; 
personating  an  officer;  making  false  statements  to  an  officer  in  regard 
to  matters  of  duty. 


PUNITIVE  ARTICLES.  288 


(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc..  as  specified. 

n.  conduct  or  a  nature  to  bring  discredit  upon  the  military 

SERVICE. 

"Discredit,"  as  here  used,  means  to  injure  the  reputation  of. 

The  principal  object  of  including  this  phrase  in  the  general  article 

was  to  make  military  offenses  those  acts  or  omissions  of  retired  sol- 

-  which  were  not  elsewhere  made  punishable  by  the  Articles  of 

«\rar  but  which  are  of  a  nature  to  bring  discredit  on  the  service,  such. 

■8  a  failure  to  pay  debts. 

There  is,  however,  a  limited  field  for  the  application  of  this  part 
cf  the  general  article  to  soldiers  on  the  active  list  in  cases  where 
their  discreditable  conduct  is  not  made  punishable  by  any  specific 
article  or  by  the  other  parts  of  the  general  article. 


(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc.,  as  specified. 

III.    CRIMES  OR  OFFENSES   NOT  CAPITAL. 

Til.'  crimes  referred  to  in  A.  W.  96  manifestly  embrace  those  not 
capital  committed  in  violation  of  public  law  as  enforced  by  the  civil 
power.     (U.  S.  v.  Grafton,  206  U.  S.,  348.) 

All  crimes  or  offenses  wherever  committed  that  are  not  made 
punishable  by  death  are  included,  except  such  as  are  specifically  in- 
cluded in  some  other  article  and  (in  view  of  the  ninety-second  ar- 
ticle) except  murder  or  rape  committed  in  time  of  peace  within 
the  geographical  limits  of  the  States  of  the  Union  and  the  District 
olumbia. 

Within  this  description  would  be  a  noncapital  crime  which,  al- 
though designated  by  the  laws  of  the  jurisdiction  where  committed 
vrith  one  of  the  names  used,  for  instance,  in  the  ninety-third  article, 
is  not  within  the  common-law  definition  of  the  offense. 

Thus  section  90  of  the  Federal  Penal  Code  of  1910  provides  that 
*  failure  by  an  officer  to  render  accounts  for  public  money  received 
ft>y  him  unless  authorized  to  retain  it  as  salary,  pay,  or  emolument 

an  embezzlement  of  such  funds.    Such  an  embezzlement  not  1 

thin  the  definition  of  embezzlement  as  the  term  is  used  in  tha 

Dety-third  and  ninety-fourth  articles  would  be  chargeable  under 
genera]  article. 

The  elements  of  some  of  the  more  common  crimes  that  are  charge* 
I Die  under  this  article  will  now  be  discussed. 


<2S4  MANUAL  TOR  C0T7BTS-MABTIAL. 

(1)  Assault. 

(2)  Assault  and  tottery. — See  matter  under  heading  "IX"  under 
ninety-third  article. 

A  battery  is  any  unlawful  touching  or  injury,  however  slight,  to 
the  person  of  another  directly  or  indirectly  'lone  in  an  angry,  re- 
vengeful, rude  or  insolent  manner.  Throwing  water  or  spitting  in 
a  person's  face  is  a  battery.  So,  merely  taking  hold  of  another's 
clothing,  or  pushing  another  against  him.  or  striking  a  horse  on 
which  he  is  riding  causing  him  to  be  thrown:  striking  his  cane  while 
in  his  hand,  is  a  battery  when  done  unlawfully  and  in  the  manner 
described. 

If  the  injury  is  accidentally  inflicted  in  doing  a  law  fid  act  without 
culpable  negligence  the  offense  is  not  committed:  but  where  personal 
injury  results  from  the  reckless  doing  of  an  act  likely  to  result  in 
such  injury,  the  offense  is  committed. 

It  is  no  defense  that  the  injury  took  place  on  a  person  for  which 
it  was  not  intended,  or  that  the  injury  was  not  the  immediate  result 
of  the  defendant's  acts.  Thus,  if  a  person  throws  a  firecracker  in  a 
crowd  where  it  is  tossed  from  hand  to  hand  and  finally  explodes  and 
puts  out  a  man's  eye,  the  offense  is  committed. 

(3.)  Assault  with  a  dangerous  weapon,  instrument,  or  other 
thing. — See  matter  under  heading  "  IX,"  under  Ninety-third  article. 

Weapons,  etc.,  are  dangerous  when  they  are  used  in  such  manner 
that  they  arc  likely  to  produce  death  or  great  bodily  harm.  Mere 
capability  of  being  so  used  is  not  enough. 

Boiling  water  may  be  so  used  as  to  be  a  dangerous  thing,  and  a 
pistol  may  be  so  used  as  not  to  be  a  dangerous  weapon. 

(4.)  Forgery. — At  common  law  "forgery  is  the  fraudulent  mak-> 
ing  of  a  false  writing  which,  if  genuine,  would  be  apparently  of 
some  legal  efficacy."     (Bishop,  vol.  2.  p.  301.) 

Some  of  the  instruments  that  are  subjects  of  forgery  are  checks, 
indorsements,  orders  for  the  delivery  of  money  or  goods,  railroad 
tickets,  and  receipts. 

A  false  writing  includes  a  false  instrument  that  is  in  part  or  en- 
tirely printed,  engraved,  written  with  a  pencil,  or  made  by  photog- 
raphy or  other  device. 

A  false  writing  may  be  made  by  materially  altering  an  existing 
writing,  by  rilling  in  a  paper  signed  in  blank,  or  by  signing  an  instru- 
ment already  written. 

The  writing  must  be  false — must  purport  to  be  what  it  is  not. 

Thus,  signing  another's  name  to  a  check  with  intent  to  defraud  is 
forgery,  as  the  instrument  purports  on  its  face  to  be  what  it  is  not. 
But  \\  here,  after  the  false  signal  ure  of  such  person  is  added  the  word 
by  and  the  signature  of  the  person  making  the  check,  Jhus  indicat- 


CTVE   ABTTCLES.  285 

ing  an  authority  to  sign,  the  offense  is  not  forgery  even  if  no  such 
authority  exists,  as  the  check  on  its  face  is  what  it  purports  to  be. 

Forgery  may  be  committed  by  signing  one's  own  name  to  an  instru- 
ment. Thus,  where  a  check  payable  to  the  order  of  a  certain  person 
comes  into  the  hands  of  another  of  the  same  name,  he  commits  for- 
gery, when,  knowing  the  check  to  be  another's,  lie  indorses  it  with 
his  own  name,  intending  to  defraud. 

Forgery  may  also  be  committed  by  signing  a  fictitious  name,  as 
where  a  person  signs  a  check  payable  to  himself  with  a  fictitious 
name:  but  when  he  passes  a  check  signed  by  him  with  a  fictitious 
name,  credit  being  extended  to  Mm  without  regard  to  his  name, 
forgery  is  not  committed. 

To  constitute  a  forgery  the  instrument  must  have  apparent  legal 
efficacy.  The  fraudulent  making  of  an  instrument  affirmatively  in- 
valid on  its  face  is  not  a  forgery.  But  this  requirement  does  not 
ordinarily  prevent  the  fraudulent  making  of  a  signature  on  a  check, 
for  instance,  from  being  a  forgery  even  if  there  be  no  resemblance  to 
the  genuine  .signature  and  the  name  is  misspelled. 

The  false  writing  must  be  made  with  intent  to  defraud.  A  per- 
son who  signs  another's  name  to  an  instrument  believing  that  he 
has  authority  to  do  so  does  not  commit  a  forgery. 

It  is  immaterial,  however,  that  anyone  be  actually  defrauded  or 
that  no  further  .-tcp  be  made  toward  carrying  out  the  intent  to 
defraud  than  the  making  of  the  false  writing. 

(5)  Sudani/. — See  assault  with  intent  to  commit  sodomy  under 
heading  "  IX."  under  ninety-third  article. 

PBOOF. 

Crimes  in  general: 

:    That  the  accused  did  or  failed  to  do  the  acts  alleged. 
( I )  The  circumstances,  intent,  etc.,  as  specified. 
(1)  Assault: 

That  the  accused  did  the  overt  act  alleged. 
(I)  The  facts  and  cii vimistances  of  the  case  indicating  either  that 
such  an  act  was  an  actual  attempt  with  force  and  violence  to  do  a 
corpora]  hurt  to  a  certain  person  or  that  such  act  was  apparently 

■  the  mind  of  the  person  set  upon 
a  well-grounded  apprehension  of  such  injury, 
cj  |  A  --  lull  and  bal 

(a)  Tli    !  Ited  B  certain  person,  as  alleged. 

(b)  Thai  an  ilted  to  such  p< 

It  with  a  weapon,  instrument,  or  other  thing: 

(a  i   That  the  accused  assauh  with  a  • 

weapon,  insti  ument,  or  t;. 


2bG  MANUAL   W>B   c  (»r UTS- MARTIAL. 

(b)  That  facts  and  circumstances  oi  the  case  indicating  that  such 
weapon,  instrument,  <>r  thing  was  used  id  a  manner  likely  to  produce 
death  or  great  bodily  harm. 

i  1 1   Forgery: 

(a)  That  a  certain  instrument  was  made.  (The  instrument  itself 
should  be  produced,  if  available.) 

{b)  That  such  instrument  is  a  forgery. 

(c)  That  the  accused  forged  it. 

(d)  The  facts  and  circumstances  of  the  case  indicating  the  intent 
of  the  accused  thereby  to  defraud  a  certain  person. 

(5)   Sodomy: 

See  proof  under  heading  "  IX,"  under  ninety-third  article. 


CHAPTER  XVIII. 
COURTS  OF  INQUIRY. 


:iion:  Page. 

447 .  When  and  by  whom  ordered 

448.  Limitation  upon  power  to  convene 288 

449.  Discretion  as  to  ordering  court 288 

Section  II:  Jurisdiction: 

450.  As  to  persons 288 

451 .  As  to  time 288 

452.  As  to  subject  matter 288 

Section  TIT:  Composition: 

453.  Members 288 

454.  Recorder 289 

455.  Convening  order 289 

456.  Hank  of  members 289 

457.  Reporter  and  interpreter 289 

I  V:  Powers: 

458.  To  summon  and  examine  witnesses 289 

459.  Refusal  to  appear  or  testify 289 

460.  ( iontempt '• 289 

Section  V:  Procedure: 

461.  General  principles 290 

I    rn  sence  of  party  whose  conduct  is  being  investigated 290 

463.  Counsel 290 

464.  Challenge 290 

4G5.  Reduced  numbers 200 

466.  Oaths 290 

467.  Examination  oi  witnesses 291 

468.  Depositions 291 

469.  Conclusions 291 

470.  Obligation  of  secrecy 291 

471.  Revision  by  court -1'1 

472.  Publication  of  proceedings -!,2 

Section  VI:  Record: 

473.  How  authenticated 292 

474.  Disposition  of 292 

475.  Admissible  in  evidence 292 


Section  L 

CONSTITUTION. 

447.  When  and  by  whom  ordered.— A  court  of  inquiry  to  examine 
into  the  nature  of  any  transaction  isation  or  imputation 

against  any  officer  or  soldier  may  be  ordered  by  the  President  or  by 

287 


2SS  MANUAL  FOR   COUETS  MARTIAL. 

m.;.  con  manding  officer,  but  a  court  of  inquiry  shall  not  bo  ordered 
by  any  commanding  officer  except  upon  the  request  of  the  officer  or 
soldier  whose  conduct  is  to  be  inquired  into.     (A.  AY.  97.) 

448.  Limitation  upon  power  to  convene. — There  butory  re- 
striction to  the  meaning  of  the  term  "commanding  officer,"  conse- 
quently any  commander  of  the  officer  or  soldier  who  makes  the  request 
would  have  authority  to  convene  the  court,  but  if  the  charge  to  be 
inquired  into  is  beyond  the  jurisdiction  of  a  court-martial  which  such 

mander  can  appoint,  he  would  not.  by  analogies  of  the  service  in 
administration  of  military  justice,  be  the  proper  convening  au- 
ty  in  such  case.     (Op.  J.  A.  G.,  approved  by  Secretary  of  War, 
Sept.  19,  L874.) 

449.  Discretion  as  to  ordering  court. — Neither  the  President  nor  a 
manding  officer  is  obliged  to  order  a  court  of  inquiry  on  demand 

of  an  officer  <>r  soldier.    Where  the  facts  are  thoroughly  understood 
thority  who  is  requested  to  order  a  court  of  inquiry  or  can  be 
Factorily  ascertained  by  an  investigating  officer,  the  command- 
officer  may,  in  his  discretion,  refuse  the  application;  but  in  the 
1  the  party,  if  not  satisfied,  may  appeal  to  higher 
authority.     (Winthrop,  p.  805.) 

Section  II. 
JURISDICTION. 

450.  As  to  persons. — A  court  of  inquiry  may  examine  into  the  con- 
duct  of  officers  «  r  soldiers  only  (A.  W.  97),  and  the  inquiry  is  con- 
fined to  those  actually  in  the  service.     (Digest,  p.  586,  XVIII,  I'..) 

451.  As  to  time.— The  statute  of  limitations  (A.  W.  39)  does  not 
apply  to  courts  of  inquiry.     There  is  no  legal  objection  therefore  to 

tigating  transactions  that  are  remote  in  time. 

452.  As  to  subject  matter.— The  inquiry  is  limited  to  transactions  of 
or  accusations  or  imputations  against  officers  or  soldiers.  (A.  W.  97.) 
Tin-  principal  uses  which  courts  of  inquiry  are  expected  to  serve  are: 

For  determining  whether  there  should  be  a  trial  by  court-martial 
in  a  particular  instance;   (&)  for  informing  and  advi  perior 

authority  in  cases  which  appear  not  to  call  for  trial  by  court-martial, 
but  for  some  other  military  or  administrative  action;  and  (c)  for  the 
vindication  of  character  or  conduct.     (Winthrop.  p.  805.) 

Se<  no\   III. 
COMPOSITION. 

453.  Members.— A  court  of  inquiry  shall  consist  of  three  or  more 
officers.  (A.  W.  98.)  The  Secretary  of  War  may  assign  retired 
officers,  with  their  consent,  upon  courts  of  inquiry.     (Act   of  Apr. 


COURTS  OF   INQUIRY.  289 

23,  1904.)     In  time  of  war  retired  officers  may  be  employed  on  active 
duty  in  the  discretion  of  the  President.     (Act  of  June  3,  191G.) 

454.  Recorder. — For  each  court  of  inquiry  the  authority  appointing 
the  court  shall  appoint  a  recorder.  (A.  W.  98.)  The  recorder  is 
not  an  adviser  of  tho  court  nor  a  prosecutor  before  it,  but  will  assist 
the  court,  if  it  so  desires,  in  all  matters  leading  to  correct  conclu- 
sions of  fact  and  law. 

455.  Convening  order. — The  form  of  the  convening  order  is  similar 
to  that  for  a  court-martial.  It  details  the  members  and  recorder  by 
name,  fixes  the  time  and  place  of  meeting,  specifies  the  subject  matter 
of  inquiry,  and  directs  a  report  of  the  facts  only,  or  of  the  facts  with 
an  opinion  on  the  merits  of  the  case. 

456.  Rank  of  members. — There  is  no  statute  prescribing  the  rank  of 
members,  but  when  it  can  be  avoided  they  should  not  be  inferior  in 
rank  to  the  officer  whose  conduct  is  being  inquired  into.  The  decision 
of  the  appointing  authority,  as  indicated  by  the  order  convening  the 
court,  is  conclusive  as  to  whether  or  not  it  can  be  avoided. 

457.  Reporter  and  interpreter. — The  president  of  a  court  of  inquiry 
has  the  same  power  to  appoint  reporters  and  interpreters  as  is  dele- 
gated to  the  president  of  a  court-martial.  (A.  W.  115.)  They  are 
usually  paid  at  the  rates  fixed  by  Army  regulations  for  those  of 
courts-martial.  (A.  E.  986-988.)  An  enlisted  man  may  be  detailed 
to  serve  as  stenographic  reporter  and  will  receive  extra  pay  as  pro- 
vided in  A.  R.  986. 

Section  IV. 

POWERS. 

458.  To  summon  and  examine  witnesses. — A  court  of  inquiry  and  the 
recorder  thereof  shall  have  the  same  power  to  summon  and  examine 
witnesses  as  is  given  to  a  court-martial  and  the  judge  advocate 
thereof.     (A.  W.  101.) 

459.  Refusal  to  appear  or  testify. — Any  person  not  subject  to  military 
law  who.  being  duly  subpoenaed  to  appear  as  a  witness  before  a  court 
of  inquiry  or  before- any  officer,  military  or  civil,  designated  to  take 
a  deposition  to  be  read  in  evidence  before  such  court,  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness,  or  to 
testify,  or  to  produce  documentary  evidence  which  such  person  may 
have  been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of 
a  misdemeanor  and  punished  as  in  like  offenses  with  respect  to  courts- 
martial.     (A.  W.  23.) 

460.  Contempt. — A  court  of  inquiry  has  no  authority  to  punish  for 
contempt,  but  any  conduct  before  it  to  the  prejudice  of  good  order 
and  military  discipline  by  persons  subject  to  military  law  may  be 
made  the  subject  of  charges  against  the  offender. 

i 20 


290  MANUAL  FOR  COURTS-MARTIAL. 

Section  V. 
PROCEDURE. 

461.  General  principles. — A  court  of  inquiry  is  governed  by  the  gen- 
oral  principles  of  military  law,  applying  the  analogies  of  a  court- 
martial  where  they  arc  applicable, and  recurring  to  adjudged  cases, 
precedents,  rules,  authoritative  Legal  opinions,  and  approved  books  of 
legal  exposition  where  there  is  no  pertinent  paramount  stated  ride. 
(28  Op.  Attv.  Gen.,  864*)  A  court  of  inquiry  is  not  really  a  court 
in  the  Legal  sense  of  the  term,  for  no  criminal  issue  is  formed  before 
it,  it  arraigns  no  accused,  receives  do  plea,  makes  no  findings  of 
guilt  or  innocence,  awards  no  punishment,  and  expresses  no  opinion 
unless  specially  ordered  to  do  so. 

462.  Presence  of  party  whose  conduct  is  being  investigated. — The  pres- 
ence of  the  party  whose  conduct  is  being  investigated  is  not  essential 
and  his  absence  does  not  affect  the  authority  of  the  court  to  proceed 
with  the  hearing. 

463.  Counsel. — The  party  whose  conduct  is  being  inquired  into  shall 
have  the  right  to  be  represented  before  the  court  by  counsel  of  his 
own  selection,  if  such  counsel  be  reasonably  available.  (A.  W.  99.) 
So  also  the  accuser,  where  there  is  one,  should  usually  be  allowed  to 
bo  present  with  counsel,  and  a  similar  privilege  may  properly  be  ex- 
tended to  any  oflicer  who  will  be  materially  involved  in  the  inquiry. 
(Winthrop,  p.  812.) 

464.  Challenge. — Members  of  a  court  of  inquiry  may  be  challenged 
by  tin'  party  whose  conduct  is  being  inquired  into,  but  only  for  cause 
stated  to  the  court.  The  court  shall  determine  the  relevancy  and 
validity  of  any  challenge,  and  shall  not  receive  a  challenge  to  more 
than  one  member  at  a  time.     (A.  W.  99.) 

465.  Reduced  numbers. — Where  the  number  of  members  is  reduced  by 
casualty  or  challenge,  the  court  may  proceed  with  the  reduced  num- 
ber, if  not  below  the  minimum,  but  the  appointing  authority  should 
be  notified  in  order  that  he  may  detail  new  members  if  he  desires  to 
do  so.  If  any  testimony  has  been  taken  before  a  new  member  is 
added,  it  should  be  read  to  him  in  the  presence  of  the  other  members. 
In  the  absence  of  the  recorder  the  junior  member  can  not  act  as 
recorder.  The  proper  procedure  is  to  notify  the  convening  authority 
and  adjourn  to  await  the  appointment  of  another  recorder. 

466.  Oaths. — The  reorder  of  a  court  of  inquiry  shall  administer  to 
the  members  the  following  oath: 

Ynu,  a.  I'..,  do  swear  (or  affirm)  that  you  will  well  and  truly  examine  and 
Inquire,  according  to  the  evidence,  Into  the  matter  now  before  you,  without 
partiality,  favor,  aff<  ctlon,  prejudice,  or  hope  of  reward.    So  help  yon  God. 


COURTS  OF   INQUIRY.  291 

After  which  the  president  of  the  court  shall  administer  to  the 
recorder  the  following  oath : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will,  according  to  your  best  abili- 
ties, accurately  and  impartially  record  the  proceedings  of  the  court  and  the 
evidence  to  be  given  in  the  case  in  hearing.     So  help  you  God. 

In  case  of  affirmation  the  closing  sentence  of  adjuration  will  be 
omitted.     (A.  W.  100.) 

AVitnesses  shall  take  the  same  oath  or  affirmation  that  is  taken  by 
witnesses  before  courts-martial,  and  a  reporter  or  interpreter  shall, 
before  entering  upon  his  duties,  take  the  oath  or  affirmation  required 
of  a  reporter  or  an  interpreter  for  a  court-martial.     (A.  W.  101.) 

467.  Examination  of  witnesses. — The  examination  of  witnesses  may 
be  by  the  court,  by  a  member  thereof,  or  by  the  recorder,  in  the  discre- 
tion of  the  court.  The  party  whose  conduct  is  being  inquired  into 
or  his  counsel,  if  any,  shall  be  permitted  to  examine  and  cross- 
examine  witnesses  so  as  fully  to  investigate  the  circumstances  in  ques- 
tion. (A.  W.  101.)  A  witness  may  not  be  compelled  to  answer  any 
question  which  would  tend  to  incriminate  or  degrade  him.  (A.  W. 
24.) 

468.  Depositions. — Depositions  to  be  read  in  evidence  before  courts 
of  inquiry  are  taken  and  admitted  in  evidence  under  the  same  rules 
governing  their  taking  and  admissibility  in  evidence  before  courts- 
martial.  '  (A.  W.  25,  26.) 

469.  Conclusions. — The  court  must,  as  a  finding,  give  its  conclusions 
as  to  the  facts,  and,  when  ordered,  must  also  give  an  opinion  on  the 
merits  of  the  case.  The  conclusions  or  opinion  may  not  be  unani- 
mous, in  which  case  a  dissenting  conclusion  or  opinion  is  authorized. 

470.  Obligation  of  secrecy. — The  oath  of  members  of  a  court  of  in- 
quiry, unlike  that  of  members  of  a  court-martial,  does  not  enjoin 
upon  them  secrecy  as  to  the  votes  and  opinions  of  members,  but  under 
the  custom  of  the  service  it  would  be  conduct  prejudicial  to  disci- 
pline to-divulge  the  recommendation  or  opinion  of  the  court  until  an- 
nounced by  the  appointing  authority,  or  to  disclose  the  vote  or  opin- 
ion of  a  member  unless  legally  required  to  do  so. 

471.  Revision  by  court. — If  not  satisfied  with  the  investigation,  or 
with  the  report  or  opinion,  the  reviewing  authority  may  reassemble 
the  court,  in  the  same  manner  as  a  court-martial,  and  return  the  pro- 
ceedings with  direction  either  to  have  the  investigation  pursued 
further  and  completed,  or  the  report  of  the  facts  made  more  detn i  !<  ' 
and  comprehensive,  or  the  opinion  expressed  in  terms  more  definite 
and  unequivocal  or  more  responsive  to  the  original  instructions,  or  tc 
correct  or  supply  some  other  error  or  defect.  The  inquiry  not  being  I 
trial  but  an  investigation  merely,  the  court  may  properly  be  required, 
upon  revision,  to  reexamine  witnesses  or  to  take  entirely  new  testi- 


MANUAL  ror  cor 

mony,  or  it  i  owi  d<  re  in  connec- 

tion with  I  •'!.    (Winthrop,  p.  819.) 

I.  Publication  of  proceedings. — The  reviewing  authority,  having 

,  q]  on  ill"  report  or  opinion,  may  publish  in  orders, 

or  in  part,  or  in  substance,  the  report  of  the  court  upon  the 

I  the  inquiry,  with  the  opinion,  ii  any,  and  the  determina- 

.     Upon  considerations,  however,  of 

justice,  the  President  or  commander  may,  in  his  discretion, 

delay  the  publication,  or  omit   altogether  the  publication  of,  the 

may  publish  the  result  alone,  as,  for  example,  that  it  is 

ceedings  are  called  for  in  the  case. 

Section  VI. 

RECORD. 

473.  How  authenticated. — Each  court  of  inquiry  shall  keep  a  record 

ings,  which  shall  be  authenticated  b}^  the  signature  Oi 

the  president  and  the  recorder  thereof.    In  case  the  record  can  not  be 

authenticated  by  the  recorder,  by  reason  of  his  death,  disability,  or 

absence,  it  shall  be  signed  by  the  president  and  by  one  other  mem- 

the  court.     (A.  W.  L03.) 

474.  Disposition  of. — The  record  shall  be  forwarded  to  the  reviewing 
authority.  (A.  W.  103.)  Should  the  court  be  appointed  by  the 
Pn    ident  the  proceedings  will  be  sent  direct  to  the  Judge  Advo- 

General  of  the  Army.  To  his  office  will  be  forwarded  the 
original  proceedings  <>f  all  courts  of  inquiry  with  the  decisions  and 
oniric  of  the  reviewing  authority  made  thereon,  accompanied  by  five 
copies  of  lln'  order  publishing  the  ease,  if  there  be  any,  also  a  copy  of 
every  subsequent  order  affecting  the  case.  When  more  than  one  case 
abraced  in  a  single  order,  a  sufficient  number  of  copies  will  be 
forwarded  to  enable  our  to  be  filed  with  each  record.     (A.  R.  917.) 

475.  Admissible  in  evidence. — The  record  of  the  proceedings  of  a 
i  our!  of  inquiry  may  be  read  in  evidence  before  any  court-martial  or 
military  commission  in  any  case  not  capital  nor  extending  to  the 
dismissal  <»f  an  officer,  and  may  also  be  read  in  evidence  in  any  pro- 
ceeding  before  a  court  of  inquiry  or  a  military  board:  Provided, 
Th.it  Mich  evidence  may  he  adduced  by  the  defense  in  capita]  cases 
or  a  ding  t<>  the  dismissal  of  an  officer.     (A.  W.  27.     See 

272.) 


CHAPTER  XIX. 
HABEAS  CORPUS. 

Page. 

Section  I:  Purpose  of  writ 293 

47G.  To  determine  legality  of  restraint 293 

Section  II:  Where  restraint  is  by  the  United  States 293 

477.  State  court  without  authority 293 

Section  III:  Return  to  writ  issued  by  State  court 294 

478.  To  show  authority  for  restraint 294 

(o)  Witness  held  under  warrant  of  attachment 294 

(6)  Enlisted  man  or  general  prisoner 294 

in  IV:  Return  to  writ  issued  by  a  United  States  court  295 

479.  Contents 295 

an  V:  Writ  issued  in  the  Philippine  Islands 295 

480.  When  return  conclusive 295 


Section  I. 
PURPOSE  OF  WRIT. 

476.  To  determine  legality  of  restraint. — The  purpose  of  the  writ  of 
habeas  corpus  is  to  bring  the  person  seeking  the  benefit  of  it  before 
the  court  or  judge  to  determine  whether  or  not  he  is  illegally  re- 
strained of  his  liberty.  It  is  a  summary  remedy  for  unlawful  re- 
straint of  liberty  and  it  can  not  be  made  use  of  to  perform  the  func- 
tion of  a  writ  of  error  or  an  appeal.  Where  it  is  decided  that  the 
restraint  is  unlawful  he  is  ordered  released,  but  if  the  restraint  is 
lawful  the  writ  is  dismissed.  If  the  restraint  be  by  virtue  of  legal 
process,  the  validity  and  present  force  of  such  process  are  the  only 
subjects  of  investigation. 

Section  II. 

WHERE   RESTRAINT  IS  BY   THE  UNITED   STATES. 

477.  State  court  without  authority.— A  State  court  is  without  authority 
to  inquire  into  the  legality  of  the  restraint  where  it  appears  that  the 
custody  is  by  virtue  "  of  the  authority  of  the  United  States,"  the 
principle  being  that  no  State  can  authorize  one  of  its  judges  or  courts 
to  exercise  judicial  power,  by  habeas  corpus,  within  the  jurisdiction 
of  another  and  independent  government.  No  State  judge  or  court, 
after  they  are  judicially  informed  that  the  party  is  held  under  the 
authority  of  the  "United  States,  has  any  right  to  interfere  with  him 
or  to  require  him  to  be  brought  before  them.  (Bobb  v.  Connolly,  111 
U.  S.,  024,  632;  Ableman  v.  Booth,  21  How..  506,  514;  Tarble's  case, 

203 


29  |  i    \i.    l  OB    I  OUSTS  M  \t:  I  I.M.. 

L8  Wall.,  397,  W9.)    If  d  party  thus  held  be  illegally  imprisoned,  it 

i  the  courts  or  judicial  officers  of  the  United  States,  and  those 

courts  or  officers  alone,  to  grant  him  release.     (Tarble's  case,  t3  Wall., 

11.) 

S»  no»  ill. 

RETURN  TO  WRIT  ISSUED  BY  STATE  COURT. 

478.  To  show  authority  for  restraint.— The  return  should  be  suffi- 
-  in  its  detail  of  fads  to  show  distinctly  that  the  imprisonment  is 
under  the  authority,  or  claim  and  color  of  the  authority,  of  the 
i  States  and  to  exclude  the  suspicion  of  imposition  or  oppres- 
sion on  the  part  of  the  officer  making  the  return.    The  process  or 
orders  under  which  the  petitioner  is  held  should  be  produced  with 
the  return  and  submitted  to  inspection  in  order  that  the  court  or  the 
judge  issuing  the  h  rit  may  see  that  the  officer  is  acting  in  good  faith, 
under  the  authority  or  claim  and  color  of  authority  of  the  United 
States,  and  not  under  the  mere  pretense  of  having  such  authority. 
(Tarble's  case,   13  Wall.,  307,  -409;  Covell    v.  Herman,  111  U.  S., 
.  83. ) 

(a)  Witness  held  under  warrant  of  attachment. — Where  the  petitioner 
is  a  civilian  who  has  been  apprehended  under  a  warrant  of  attach- 
ment to  be  taken  before  a  court-martial  to  testify  as  a  witness,  the 
officer  making  the  return  to  the  writ  issued  by  a  State  court  or  judge 
will  not.  produce  the  bodjr,  but  will,  by  his  return,  set  forth  fully  the 
authority  by  which  he  holds  the  person  and  allege  that  the  State 
court,  or  judge,  issuing  the  writ  is  without  jurisdiction  to  issue  the 
same  and  ask  to  have  it  dismissed.  He  will  exhibit  to  the  court  or 
judge  issuing  the  writ  of  habeas  corpus  the  warrant  of  attachment 
and  the  subpoena  (and  the  proof  of  service  of  the  subpoena)  on 
which  the  warrant  of  attachment  was  based,  and  also  a  certified 
copy  of  the  order  convening  the  court-martial  before  which  the  wit- 

•.  as  subpoenaed  to  testify,  together  with  a  copy  of  the  charges 
and  specifications  in  the  case  in  which  he  was  subpamaed  to  testify, 
and  an  affidavit  showing  that  the  witness  has  failed  to  appear  in 
use  to  such  subpeena. 
I  Nora.— See  A.  R.  997.     For  form  of  return,  see  Form  B,  Appendix  15.] 

(b)  Enlisted  man  or  general  prisoner. — The  return  to  a  writ  of  habeas 
corpus  issued  by  a  State  court  or  judge  to  produce  an  enlisted  man  or 
a  general  prisoner  and  show  cause  for  his  detention  will  show  in 
writing  that  the  subject  of  the  writ  is  a  duly  enlisted  soldier  of  the 
United  State-  or  a  genera]  prisoner,  as  the  case  may  be,  and  set  fi 
fully  the  cause  of  his  detention,  hut  the  officer  making  the  return  will 
decline  to  produce  in  court  the  body  of  the  prisoner  named  in  th« 


HABEAS  CORPUS.  295 

writ,  giving  as  a  reason  for  such  refusal  the  fact  that  the  Supreme 
Court  of  the  United  States  has  decided  that  a  State  court  or  judge 
has  no  jurisdiction  in  such  a  case. 

[Note. — See  A.  R.  99S.  For  form  of  return,  see  Form  D,  Appendix  15.  A 
deserter  apprehended  by  a  civil  officer  authorized  by  a  statute  of  the  United 
States  to  apprehend  deserters  is  in  the  custody  of  the  United  States.  See  D.  S. 
v.  Reaves,  126  Fed.  Rep.,  127.] 

Section  IV. 
RETURN  TO  WRIT  ISSUED  BY  A  UNITED  STATES  COURT. 

479.  Contents. — A  writ  of  habeas  corpus  issued  by  a  United  States 
court  or  judge  will  be  promptly  obeyed.  The  person  alleged  to  be 
illegally  restrained  of  his  liberty  will  be  taken  before  the  court  from 
which  the  writ  has  issued  and  a  return  made,  setting  forth  the  reasons 
for  his  restraint.  The  officer  upon  whom  such  writ  is  served  will  at 
once  report  the  fact  of  such  service  by  telegraph  direct  to  The  Adju- 
tant General  of  the  Army  and  the  commanding  general  of  the  depart- 
ment, stating  briefly  the  grounds  on  which  the  release  of  the  party  is 
sought. 

[Note. — See  A.  R.  999.  For  form  where  a  civilian  witness  is  held  under  war- 
rant of  attachment,  see  Form  A,  Appendix  15.  For  form  whei-e  an  enlisted 
man  or  general  prisoner  is  held,  see  Form  C,  Appendix  15.  For  brief  of  authori- 
ties when  writ  is  applied  for  on  grounds  of  age,  see  Appendix  15.] 

Section  V. 
WRIT  ISSUED  IN  THE  PHILIPPINE  ISLANDS. 

480.  When  return  conclusive. — It  shall  be  a  conclusive  answer  to  a 
writ  of  habeas  corpus  against  a  military  officer  or  soldier  and  a  suffi- 
cient excuse  for  not  producing  the  prisoner  if  the  commanding  gen- 
eral or  any  general  officer  in  command  of  the  department  or  district 
shall  certify  that  the  prisoner  is  held  by  him  either — 

{a)  As  a  prisoner  of  war ;  or 

(b)  As  a  member  of  the  Army,  civilian  employee  thereof,  or  a 
camp  follower  and  subject  to  its  discipline :  or 

(c)  As  a  prisoner  guilty  of  violation  of  the  laws  of  war  commit- 
ted in  any  unpacified  province  or  territory  and  who  has  escaped  into 
provinces  officially  declared  to  be  under  civil  control  and  has  been 
there1  captured  by  military  authorities  and  is  held  for  trial  for  such 
violations  of  the  laws  of  war. 

rXoTK.— Sec.  1,  Act.  No.  272,  Philippine  Commission,  Oct.  21.  1901.  and  sec.  4, 
Act  No.  421,  id..  June  23,  1902.  Respectful  return  in  writing  will  be  made  iD 
the  ease  of  prisoners  who  may  be  exempted  from  jurisdiction  by  the  provision? 
of  these  acts  stating  the  facts  of  the  east-,  but  the  body  of  tin1  prisoner  will  not 
be  produced.  In  all  other  eases  the  return  will  be  made  and  the  body  produced 
before  the  proper  tribunal.] 


CHAPTER  XX. 

MISCELLANEOUS  AND  TRANSITORY  PROVISIONS. 



.  in  I:  Miscellaneous  provisions 297 

481.  Injuries  to  persons  or  pr.  |  

Effects  of  d<                                                    298 

-  -  299 

Removal  of  .  ivil  suits 300 

485.  Complaints  of  wrongs 300 

\  1 1  Lcles  of  War— When  effecl  Lve 301 

on  I ! :  Transitory  provision 301 

4S7.  Prior  offenses  subje                      us  laws 301 


Section  I. 

MISCELLANEOUS  PROVISIONS. 

481.  Injuries  to  persons  or  property — Redress. — Article  105  imposes 
upon  a  commanding  officer,  upon  receipt  of  a  complaint  that  damage 
!>a-  been  done  to  the  property  of  any  person,  or  that  his  property  has 
been  wrongfully  taken,  by  any  person  subject  to  military  law,  the 
duty  to  convene  a  board  of  officers  consisting  of  any  number  from 
one  to  three  to  investigate  the  complaint.  The  article  provides  the 
administrative  machinery  by  which  money  reparation  for  acts  of 
waste,  spoil,  destruction,  or  depredation,  denounced  in  A.  W.  89  as 
offenses,  shall  be  made  effective.  The  article  is  not  limited  to  the 
injuries  covered  by  A.  W.  89,  but  includes  also  other  forms  of  dam- 
age to,  and  wrongful  taking  of,  property,  including  negligent  in- 
juries thereto.  (Dig.  Ops.  J.  A.  G.,  April,  1918,  p.  8.)  The  com- 
plaint will  more  properly  be  made  in  writing  by  the  injured  party 
or  his  representative,  and  should  set  forth  the  details  of  the  injury 
and  be  sustained  by  evidence  showing  it  to  be  meritorious  and  well 
founded;  and  this  evidence  may  also  properly  be  required  to  be  ex- 
hibited in  the  form  of  affidavits  or  written  statements.  It  is  com- 
petent, however,  for  a  commanding  officer,  apprised  by  the  report  of 
any  person  in  the  military  service,  or  by  the  oral  complaint  of  the 
party  injured,  of  any  such  damage,  to  proceed  with  the  investigation 
as  here  outlined  in  case  of  written  complaint  submitted  by  or  in  be- 
half of  the  party  injured  and  supported  by  affidavits  or  written 
statement.  The  board  will  be  convened  with  the  least  practicable 
delay,  is  empowered  to  summon  witnesses,  examine  them  under  oath 
or  affirmation,  receive  depositions  or  other  documentary  evidence. 
and  assess  the  damages  against  the  person  or  persons  determined  to 
be  responsible  for  the  damage  or  wrongful  taking.  The  board's 
ssmeni  of  damages  is  subject  t<>  the  approval  of  the  commanding 
officer  and  an  assessment  thus  approved  will  be  stopped  against  the 
pay  of  the  offender.  The  order  of  the  commanding  officer  directing 
stoppages  authorized  by  the  article  i-  conclusive  on  any  disbursing 
officer  for  the  payment  by  him  to  the  injured  party  of  the  stopp 

297 


MANUAL    FOB    <  0TJBTS-MAB1  I  \l.. 

The  •  >rting  to  the  procedure  under  this  article 

are  more  frequent  in  a  period  pending  or  immediately  succeeding  a 
time  of  war,  or  during  field  operations  and  maneuvers.  Aj3  the  abso- 
lute identity  of  the  guilty  parties  can  not  always  be  determined,  the 
article  further  provides  that  in  such  :t  case,  and  when  the  organiza- 
tion or  detachment  to  which  they  belong  is  known,  stoppages  to  the 
amount  of  damages  inflicted  may  be  made  and  assessed  in  such  pro- 
portion as  may  be  deemed  just  upon  the  individual  members  thereof 
who  are  shown  to  have  been  present  with  such  organization, or  de- 
tachment at  the  time  the  damages  complained  of  were  indicted,  as 
determined  by  the  approved  findings  of  the  board. 

The  guilty  parties  may  be  tried  and  punished  for  the  military 
offense  involved  in  his  and  their  act  under  A.  W.  89,  quite  irrespec- 
tively of  any  proceeding  for  the  reparation  of  the  parties  injured 
had  under  this  article.  A  trial,  however,  will  preferably  be  first 
ordered,  since,  if  reparation  be  subsequently  sought  to  be  made,  the 
commander  and  the  board  will  have  the  benefit  of  any  material  facts 
developed  upon  the  original  investigation.  So,  if  the  accused  be 
acquitted,  such  acquittal  will  furnish  persuasive  but  not  necessarily 
conclusive  ground  for  not  favorably  entertaining  the  complaint  or 
for  reducing  the  amount  to  be  assessed.     (('.  M.  0.  M.,No.  4-) 

482.  Effects  of  deceased  person — Disposition  of. — In  case  of  the  death 
of  any  person  subject  to  military  law,  the  commanding  officer  of  the 
place  of  command  will  permit  the  legal  representative  or  widow  of 
the  deceased,  if  present,  to  take  possession  of  all  his  effects  then  in 
camp  or  quarters,  and  if  no  Legal  representative  or  widow  be  present, 
the  commanding  officer  shall  direct  a  summary  court  to  secure  all 
such  effects;  and  said  summary  pourt  shall  have  authority  to"  collect 
and  receive  any  debts  due  decedent's  estate  by  local  debtors;  and  as 
soon  as  practicable  after  the  collection  of  such  effects  said  summary 
court  shall  transmit  such  effects,  and  any  money  collected,  through 
the  Quartermaster  1  department,  at  Government  expense,  to  the  widow 
or  legal  representative  of  the  deceased, if  such  be  found  by  said  court, 
or  to  his  son,  daughter,  father,  mother,  brother,  or  Bister,  in  the  order 
named,  if  such  be  found  by  said  court,  or  to  the  beneficiary  named  by 
the  deceased,  if  such  1"'  found  by  said  court,  and  such  court  shall 
thereupon  make  to  the  War  Department  a  full  report  of  it>  transac- 
tions; but  if  there  be  none  of  the  persons  hereinabove  named,  or  such 
ons  <>r  their  addresses  are  not  known  to.  or  readily  ascertainable 
by,  said  court,  and  the  court  shall  so  limb  said  summary  court  shall 
have  authority  to  convert  into  cash,  by  public  or  private  sale,  not 
earlier  than  30  daj  after  the  death  of  the  deceased,  all  effects  of  the 
deceased,  except  sabers,  insignia,  decorations,  medals,  watches,  trin- 
.  manuscripts,  and  other  articles  valuable  chiefly  as  keepsakes; 
and  a-.  3oon  a-  practicable  after  converting  such  effects  into  cash 

said  summary  court  -hall  deposit  with  the  proper  officer,  to  be  desig- 
nated in  regulations,  any  cash  belonging  to  decedent's  estate,  and  shall 
transmit  a  receipt  for  such  deposits,  any  will  or  other  papers  of  value 


MISCELLANEOUS    AND    TRANSITORY    PROVISIONS.  299 

belonging  to  the  deceased,  any  sabers,  insignia,  decorations,  medal.-, 
watches,  trinkets,  manuscripts,  and  other  articles  valuable  chiefly 
as  keepsakes,  together  with  an  inventory  of  the  effects  secured  by  said 
summary  court,  and  a  full  account  of  its  transactions  to  the  War 
Department  for  transmission  to  the  Auditor  for  the  War  Depart- 
ment for  action  as  authorized  by  law  in  the  settlement  of  the  accounts 
of  deceased  officers  and  enlisted  men  of  the  Army. 

The  provisions  of  this  article  shall  be  applicable  to  inmates  of  the 
United  States  Soldiers'  Home  who  die  in  any  United  Slates  military^ 
hospital  outside  of  the  District  of  Columbia  where  sent  from  the 
homo  for  treatment.  (See  Ch.  X,  Army  appropriation  act  of  July 
9,  1918 :  Public  Xo.  193,  65th  Cong.)     (C.  M.  ( '.  J/..  No.  I) 

483.  Inquests. — Article  113  imposes  upon  the  summary  court-martial 
the  principal  duties  of  the  office  of  coroner  at  common  law,  viz,  to 
investigate  the  cause  of  sudden,  violent,  and  unnatural  deaths.  When 
a  person  is  found  dead  at  a  place  described  in  the  article,  and  there 
is  reasonable  belief  that  his  death  has  occurred  from  violence  or. 
other  unlawful  means,  the  commanding  officer  will  immediately 
designate  and  direct  a  summary  court-martial  to  investigate  the  cir- 
cumstances of  the  death,  to  the  end  that  the  cause  thereof  may  be 
determined  and  the  persons  criminally  responsible  therefor  may  be 
brought  to  justice.  The  summary  court-martial  will  with  the  least 
practicable  delay  view  the  body  of  the  deceased  and  summon  and 
examine,  under  oath  or  affirmation,  such  witnesses  as  may  have  knowl- 
edge of  the  cause  and  circumstances  of  the  death.  The  summary 
court-martial  should  warn  every  person  testifying  at  the  inquest 
who  is  accused  or  suspected  that  he  is  not  required  to  give  evidence 
incriminating  himself,  and  that  any  statement  or  evidence  he  gives 
may  be  used  against  him  in  the  event  of  any  further  proceedings  be- 
ing* instituted.  If  expert  medical  testimony  is  necessary,  the  com- 
manding officer  will,  at  the  request  of  the  summary  court-martial, 
direct  a  medical  officer  to  make  such  examination  of  the  body  of  the 
deceased  as  may  bo  necessary  and  to  appear  as  a  witness  at  the  in- 
quest.  The  testimony  of  each  witness  will  be  reduced  to  writing, 
and  will,  except  when  stenographically  reported,  be  subscribed  by 
him.  and  will  bo  appended  to  the  report  of  the  inquest. 

If  the  body  of  the  deceased  shows  wounds  or  bruises  such  as  to 
indicate  or  create  suspicion  that  he  came  to  his  death  by  violent 
means,  it  shall  be  the  duty  of  the  summary  court-martial  to  ascer- 
tain with  as  much  exactness  as  possible  the  precise  nature  of  the 
wounds  or  blows  and  the  character  <>t*  the  instrument  by  which  the 
wounds  were  inflicted:  the  person  or  persons  by  whom  the  fatal  blow 
or  blows  were  dealt:  if  there  were  any  aiders  or  abettors;  and  such 
other  particulars  as  may  afford  the  means  of  drawing  up.  with  the 
precision  required  by  law.  the  necessary  charges  and  specifications 
against  the  person  or  persons  accused  of  the  homicide. 

The  summary  court  officer  will  render  a  written  report  of  his 
investigation  to  the  commanding  officer,  which  report  will  state  his 


MANUAL  FOB  MARTIAL. 

fM„i;,  to  I  e  death  and  the  names  of  the  persons 

Lally  responsible  therefor,  if  in  his  opinion  there  be  any  such. 

Such  gh  not  subject  to  military  law,  may.  if  found  at 

United  States  has  exclusive  jurisdiction*  be 

y  the  Comn  ,  for  such  time  as  may  be  necessary 

for  their  delivery  to  the  ci\  il  authorities.    If  such  persons  are  subject 

to  military  law  and  y  of  an  offense  not  triable  by 

:     I    ;.     .    sn  ill  be  confined  by  the  commanding  officer,  who 

will  immediately  furnish  the  proper  United  States  district  attorney 

with  a  copy  of  the  findings  of  the  summary  court  officer. 

If  the  person  over  whose  body  the  inq  id  is  not  identified 

as  an  officer  or  soldier,  the  report  of  the  summary  court-martial  shall 
scription  of  the  deceased,  which  shall  specify  the  name,  if 
known,  the  apparent  age,  the  sex,  the  color  of  the  eyes  and  hair,  and 
all  marks  or  other  particulars  which  may  assist  in  the  identification 
of  the  person. 

or  form  of  reporl  of  Inquest  see  Appendix  19.] 
484.  Removal  of  civil  suits. — When  any  civil  suit  or  criminal  prosecu- 
i  ommenced  in  any  court  of  a  State  against  any  officer,  soldier, 
or  other  person  in  the  military  service  of  the  United  States  on  ac- 
count of  any  act  done  under  color  of  his  office  or  status,  or  in  respect 
to  which  he  claims  any  right,  title,  or  authority  under  any  law  of  the 
United  States  respecting  the  military  forces  thereof,  or  under  the 
law  of  war.  such  suit  or  prosecution  may  at  any  time  before  the  trial 
or  final  healing  thereof  be  removed  for  trial  into  the  district  court 
of  the  United  States  in  the  district  where  the  same  is  pending  in 
the  manner  prescribed  in  section  33  of  the  act  entitled  "An  Act  to 
codify,  n  amend  the  laws  relating  to  the  judiciary,''  ap- 

ed March.  3,  1911  (36  Stat,,  1097),  and  the  cause  shall  thereupon 
be  entered  on  the  docket  of  said  district  court  and  shall  proceed 
therein  as  if  the  cause  had  been  originally  commenced  in  said  dis- 
trict court  and  the  same  proceedings  had  been  taken  in  such  suit 
ution  in  said  district  court  as  shall  have  been  had  therein  in 
said  State  court  prior  to  its  removal,  and  said  district  court  shall 
ha\e  full  power  to  hear  and  determine  said  cause.     (A.  W.  117.) 

485.  Complaints  of  wrongs. — Any  officer  or  soldier  who  believes  him- 
self  wronged  by  his  commanding  officer,  and,  upon  due  application 
to  uch  commander,  is  refused  redress,  may  complain  to  the  general 
commanding  in  the  locality  where  the  officer  against  whom  the  coin- 
ationed.  The  general  shall  examine  into  said  com- 
plainl  and  take  proper  measures  for  redressing  the  wrong  complained 
of;  and  lie  shall,  as  soon  as  possible,  transmit  to  the  Department  of 
War  a  true  statement  of  such  complaint,  with  the  proceedings  had 
thereon.    (A.  W.  121.  ) 


MISCELLANEOUS   AND    TRANSITORY   PROVISIONS.  301 

486.  Articles  of  War— When  effective. — Section  3  of  the  Act  of  Con- 
gress entitled  "An  Act  making  appropriations  for  the  support  of 
the  Army  for  the  fiscal  year  ending  June  30,  1917,  and  for  other 
purposes,"  approved  August  29,  1916  (39  Stat,  650-GT0),  amends 
section  1342,  Revised  Statutes  of  the  United  States,  and  contains  the 
Articles  of  War.  It  is  provided  by  section  4  of  the  act  cited  that 
the  Articles  of  War  will  be  in  force  and  effect  on  and  after  March  1, 
1917,  except  that  articles  4,  13,  14,  15,  29,  47,  49,  and  92  became  effec- 
tive upon  the  approval  of  the  act,  August  29,  1916. 

Section  II. 
TRANSITORY  PROVISION. 

487.  Prior  offenses  subject  to  previous  laws. — It  is  provided  by  sec- 
tion 5  of  the  act  of  Congress  entitled  "An  Act  making  appropriations 
for  the  support  of  the  Army  for  the  fiscal  year  ending  June  30, 
1917,  and  for  other  purposes,"  approved  August  29,  1916  (39  Stat., 
670),  that  all  offenses  committed  and  all  penalties,  forfeitures,  fines, 
or  liabilities  incurred  prior  to  the  taking  effect  of  that  act  under  any 
law  embraced  in  or  modified,  changed,  or  repealed  by  that  act  may  be 
prosecuted,  punished,  and  enforced  in  the  same  manner  and  with 
the  same  effect  as  if  that  act  had  not  been  passed. 


APPENDICES. 


No,  FagP- 

1.  The  Articles  of  War 305 

2.  System  of  courts-martial  for  National  Guard  not  in  the  service  of  the  United 

"States 331 

3.  Charge  sheet 333 

4.  Forms  for  charges 335 

5.  Suggestions  for  trial  judge  advocates 351 

6.  Form  for  record — General  court-martial  and  revision  proceedings 355 

7.  Form  for  record — Special  court-martial 363 

8.  Form  for  record — Summary  court-martial 365 

9.  Forms  for  sentences 367 

10.  Forms  for  action  by  reviewing  authority 369 

11.  Court-martial  orders 373 

(a)  General  court-martial 373 

(b)  Special  court-martial 374 

12.  Form  for  interrogatories  and  deposition 377 

13.  Subpcena  for  civilian  witness 381 

14.  Warrant  of  attachment 385 

15.  Returns  and  briefs  in  habeas  corpus  proceedings 387 

16.  Voucher  (Form  338):  Civilian  witness  not  in  Government  employ 395 

17 .  Voucher  (Form  350A) :  Chilian  witness  in  Government  employ 399 

18.  Voucher  (Form  339) :  Personal  sen-ices,  reporter 403 

19.  Report  of  inquest 407 

303 


APPENDIX  I. 
THE  ARTICLES  OF  WAR. 


TABLE  OF  CONTENTS. 

I.  Preliminary  Provisions  : 

Sec.  1342,  Revised  Statutes. 
Art.  1.  Definitions. 

Art.  2.  Persons  subject  to  military  law. 
II.  Courts-Martial: 

Art.  3.  Courts-martial  classified, 
(a.)  Composition — 

Art.  4.  Who  may  serve  on  courts-martial. 
Art.  5.  General  courts-martial. 
Art.  6.  Special  courts-martial. 
Art.  7.  Summary  courts-martial. 

(b)  By  whom  appointed — 

Art  S.  General  courts-martial. 

Art.  9.  Special  courts-martial. 

Art.  10.  Summary  courts-martial. 

Art.  11.  Appointment  of  judge  advocates. 

(c)  Jurisdiction — 

Art.  12.  General  courts-martial. 
Art.  13.  Special  courts-martial. 
Art.  14.  Summary  courts-martial. 
Art.  15.  Not  exclusive. 
Art.  16.  Officers,  how  triable. 

(d)  Procedure — 

Art.  17.  Judge  advocate  to  prosecute. 
Art  IS.  Challenges. 
Art.  19.  Oaths. 
Art.  20.  Continuances. 
Art.  21.  Refusal  to  plead. 
Art.  22.  Process  to  obtain  witnesses. 
Art.  23.  Refusal  to  apf>ear  or  testify. 
Art  24.  Compulsory  self-incrimination  prohibited. 
Art.  25.  Depositions — when  admissible. 
Art.  20.  Depositions— before  whom  taken. 
Ait.  27.  Courts  of  Inquiry — records  of— when  admissible. 
Art  28.  Resignation  without  acceptance  does  not  release  officer. 
Art.  29.  Enlistment  without  discharge. 
Art.  30.  Closed  sessions. 
Art  31.  Order  of  voting. 
Art.  32.  Contempts. 

Art.  33.  Records    general  courts-martiaL 
Art.  3!.   Records— special  and  summary  courts-martial. 
53915°— 18 21  305 


306  MANUAL  FOR  OOTJBTB  MABTIAL. 

II.  i  \.i  bts-Mabtial    Continued. 
,,/ 1    p  Continued 

An  .,;,  0f  recoi  courts-martial. 

\n. . •:';.  Disposition  of  records    Bpedal  and  Bummary  courts-martial. 

Art.  :jt.  [rregularttlea 

An.  8fi    P  '   may  prescribe  rules. 

i.  i   Limitation*  upon  prosecutions — 

Art  89.  As  to  time 

Art  40.    A-  to   number. 

(/)   Punishments— 

Art  ii.  Certain  kinds  prohibited. 
Art.  42.  Places  of  confinement — when  lawful. 
A,!,  i:;.  Death  sentence— when  lawful. 
Art 44.  Cowardice;  fraud:  accessor;  penalty. 
Art.  45.  Maximum  limits. 
(g)  Action  by  appointing  or  superior  authority— 
Art 46.  Approval  and  execution  of  situ 
Art  47.   Powers  incident  to  power  to  approve. 
Art 48.  Confirmation— when  required. 
Art  49.  Powers  incident  to  power  to  confirm. 
Art  50.  Mitigation  or  remission  of  sentences. 
Art.51.   Suspension   Of  sentences  of  dismissal   or  death. 

52.  Suspension  of  sentence  of  dishonorable  discharge. 
Art.  53.  Suspension  of  sentences  of  forfeiture  or  confinement. 
III.    1'tNii  ivi:  Aim  i<  LES  : 

(a)  Enlistment;  muster;  returns — 
Art.  54.    Fraudulent    enlistment. 
Art  55.  Officer  making  unlawful  enlistment. 
Art..".';.    Muster   rolls— false   muster. 
Art.  .",7.   False  returns — omission  t<>  render  returns. 
1 1,  i   Desertion;  absence  i<ilit<>nt  leave — 
An.  58.  1  ►esertioa 

Art. 59.  Advising  <>r  aiding  another  to  desert. 
Art.  80.  Entertaining  a  deserter. 
Art.  id.  Absence  without  leave. 
(o)   Disrespect;  Insubordination;  mutiny — 

Art  62.  Disrespect  toward  the  President,   Vice  President,  Congress, 

Secretary  of  War,  governors,  legislatures. 
Art.  63.  Disresped  toward  superior  officers. 
Art 64.  Assaulting  or  willfully  disobeying  superior  officer. 

Art  65.    Iiisulmrdiiiat. nduct  toward   lio'icommissioned  officer. 

Ait    86.    Mutlnj    or   sedition. 

67.  Failure  to  suppress  mutiny  or  sedition. 
Art 68.  Quarrels;  frays;  disorders, 
t  */ 1   Am  st ;  oon  fin-  mrnt — 

Art 69.  Arrest  or  confinement  of  accused  persons. 
Art.  To.  Investigation  of  and  action  upon  charges. 
Art.  71.   Refusal  to  receive  and  keep  prisoners. 

Art.7"_'.    Report    of  prisoners    received. 

Art.  7."..  Releasing  prisoner  without  proper  authority. 
Art 74.  Delivery  of  offenders  to  civil  authorities. 
(c)    War  offensi  * 

Art 75.  Misbehavior  before  the  enemy. 

Art.  7t'..   Subordinates  compelling  commander  to  surrender, 


APPENDICES.  307 

III  Punitive  Articles — Continued, 
(e)   War  offenses — Continued. 

Art.  77.  Improper  use  of  countersign. 
Art.  78.  Forcing  a  safeguard. 

Art.  79.  Captured  property  to  be  secured  for  public  service. 
Art.  80.  Dealing  in  captured  or  abandoned  property. 
Art.  81.  Relieving,  corresponding  with,  or  aiding  the  enemy. 
Art.  82.  Spies. 
(/)  Miscellaneous  crimes  and  offenses — 

Art.  S3.  Military    property— willful    or    negligent    loss,    damage,    or 

wrongful  disposition  of. 
Art.  84.  Waste  or  unlawful  disposition  of  military  property  issued  to 

soldiers. 
Art.  85.  Drunk  on  duty. 
Art.  86.  Misbehavior  of  sentinel. 
Art.  87.  Personal  interest  in  sale  of  provisions. 
Art.  88.  Intimidation  of  persons  bringing  provisions. 
Art.  89.  Good  order  to  be  maintained  and  wrongs  redressed. 
Art.  90.  Provoking  speeches  or  gestures. 
Art.  91.  Dueling. 
Art.  92.  Murder — rape. 
Art.  93.  Various  crimes. 
Art.  94.  Frauds  against  the  Government. 
Art.  95.  Conduct  unbecoming  an  officer  and  gentleman. 
Art.  96.  General  article. 

IV.  Coubts  of  Inquiry  : 

Art.  07.  When  and  by  whom  ordered. 

Art.  98.  Composition. 

Art.  99.  Challenges. 

Art.  100.  Oath  of  members  and  recorder. 

Art.  101.  Powers  ;  procedure. 

Art.  102.  Opinion  on  merits  of  case. 

Art.  103.  Record  of  proceedings— how  authenticated. 

V.  Miscellaneous  Provisions: 

Art.  104.  Disciplinary  powers  of  commanding  officers. 

Art.  105.  Injuries  to  person  or  property— redress  of. 

Art.  106.  Arrest  of  deserters  by  civil  officials. 

Art.  107.  Soldiers  to  make  good  time  lost. 

Art.  108.  Soldiers— separation  from  the  service. 

Are.  109.  Oath  of  enlistment. 

Art.  110.  Certain  articles  to  be  read  and  explained. 

Art.  111.  Copy  of  record  of  trial. 

Art.  112.  Effects  of  deceased  persons — disposition  of. 

Art.  113.  Inquests. 

Art.  114.  Authority  to  administer  oaths. 

Art.  115.  Appointment  of  reporters  and  interpreters. 

Art.  lli"..  lowers  of  assistant  judge  advocates. 

Art.  117.  Removal  of  civil  suits. 

Art.  118.  Officers — separation  from  service. 

Art.  119.  Rank  and  precedence  among  Regulars.  Militia,  and  Volun- 

Art.120.  Command   when   different   corps  or  commands  happen   to 

join. 
Art.  121.  Complaints  of  wrongs. 


308  M  AXIAL   FOR   COURTS-MARTIAL. 

Table  showing  Humbert  of  <>i<i  articles  and  of  corresponding  new  articles. 

OLD  AM'   NKW  (ODES. 


Old 

New- 

Old 

New 

Dumber. 

number. 

Dumber. 

number. 

number. 

number. 

number. 

number. 

l 

61 

01 

63 
64 

2 
2 

96 
97 

43 

42 

8 

55 

01 

65 

69 

98 

41 

4 

01 

66 

69 

99 

118 

5 

7 

56 

57 

■ 

68 
69 

71 
72 
73 

100 

I'll 

44 

iiVii' 

'"".;o" 

57 

70 

70 

lit! 

39 

40 

61 

71 

70 

104 

40 

10 
11 
13 

41 
4.i 

75 
75 
76 

172 

i  7:1 

71 

8 
8 
11 

105 
106 
107 

48 

4>< 
1- 

13 

56 

41 

77 

>75 

.  5 

48 

It 

56 

46 

Bl 

76 

109 

46 

83 

46 

81 

77 

4' 

111 

51 

16 

84 

47 

58 

7^ 

t 

112 

50 

17 

48 

107 

79 

1.1 

113 

18 

87 

4  it 

28 

1  81 

6,9,13 

114 

111 

50 

29,00 

i  82 

6,9,13 

115 

20 

51 

59 

183 

13,14 

116 

98 

21 

23 

66 
67 

52 
53 
54 

84 
85 
86 

19 
19 

117 

11s 

119 

100 
101 

102 

89,'i6o' 

24 

68 

89,105 
88 

87 

120 

103 

90 

88 

is' 

121 

27 

91 

57 

78 

89 

21 

122 

12(1 

91 

58 

92,93 

90 

17 

124 

119 

28 

91 

59 

74 

91 

25 

125 

112 

29 

121 

60 

2,94 

92 

19 

120 

112 

30 

121 

61 

95 

93 

20,70 

127 

112 

31 

61 

62 

93,96 

95 

31 

128 

110 

81,  82,  and  83  were  replaced  by  the  act  of  Mar.  2,  1913   (37 
,  1913. 


specified  herein  this  code  becomes  effective  on 


» Old  articles  Tii.  73,  75, 
siat..  728),  effective  July 

I  Note.     Except  as  otherwi 
March  1,  1917.] 

/:.    it  enacted  by  the  Senate  ">"'  Bouse  of  Representatives  of  the  United 
of  Aim  rial  in  Congress  assembled. 
******* 
si.< .  .",.  Thai  section  thirteen  hundred  and  forty-two  of  the  Revised  Statutes 
of  the  United  States  be,  and  the  same  is  hereby,  amended  to  read  as  follows: 
.   L342.  The  articles  Included  In  this  section  shall  be  known  as  the  Ar- 
ticles Of  War  and  shall  at  all  times  and  in  all  places  govern  the  armies  of  the 
:    States. 

"   1.     I'KKI.IMINAKY     PROVISIONS. 

"Ahi  nil:    1.    I'r  The   following  words  when   used    in   these   articles 

shall  he  construed  in  the  sensr  indicated  in  this  Article,  unless  the  context 
a  that  a  different  sense  is  Intended,  namely: 

i  The  word  •  officer'  shall  be  construed  i"  refer  to  a  commissioned  officer; 
"(lit   The  word  'soldier'  shall  he  .oust rued  as  including  a  noncommissioned 
Officer,  a  private,  "i-  any  other  enlisted  man; 
"(c)  The  w.ud  'company'  shall  he  understood  as  including  a  troop  <>r  bat- 

ti  rj  :    and 

"(d)  The  word  '  battalion  '  shall  he  underst I  as  including  a  squadron. 

"A1.1.  'J..  I'm;-..  i.iiaky  law. — Tin-  following  persons  are  sub- 
Jed  t..  these  articles  and  shall  he  understood  as  included  in  the  term  'any  per- 
son subject  to  military  law,'  or  'persons  SUbJed  to  military  law.'  whenever  used 
In  thi  Provided,  That  nothing  COntaJ 1  in  this  Act,  except  as  specifi- 


APPENDICES.  309 

cally  provided  in  Article  two.  subparagraph  (c),  shall  be  construed  to  apply  to 
any  person  under  the  United  States  naval  jurisdiction,  unless  otherwise  specifi- 
cally provided  by  law. 

"(a)  All  officers  and  soldiers  belonging  to  the  Regular  Army  of  the  United 
Stares;  all  volunteers,  from  the  dates  of  their  muster  or  acceptance  into  the 
military  service  of  the  United  States;  and  all  other  persons  lawfully  called, 
drafted  or  ordered  into,  or  to  duty  or  for  training  in,  the  said  service,  from  the 
dates  they  are  required  by  the  terms  of  the  call,  draft  or-order  to  obey  the  same; 

"(b)    Cadets; 

"(c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached  for  service  with 
the  armies  of  the  United  States  by  order  of  the  President:  Provided,  That  an 
Officer  or  soldier  of  the  Marine  Corps  when  so  detached  may  be  tried  by  military 
court-martial  for  an  offense  committed  against  the  laws  for  the  government  of 
the  naval  service  prior  to  his  detachment,  and  for  an  offense  committed  against 
these  articles  he  may  be  tried  by  a  naval  court-martial  after  such  detachment 
ceases; 

'•(d)  All  retainers  to  the  camp  and  all  persons  accompanying  or  serving  with 
the  armies  of  the  United  States  without  the  territorial  jurisdiction  of  the 
United  States,  and  in  time  of  war  all  such  retainers  and  persons  accompanying 
or  serving  with  the  armies  of  the  United  States  in  the  field,  both  within  and 
without  the  territorial  jurisdiction  of  the  United  States,  though  not  otherwise 
subject  to  these  articles; 

"(e)  All  persons  under  sentence  adjudged  by  courts-martial; 

"(f)  All  persons  admitted  into  the  Regular  Army  Soldiers'  Home  at  Washing- 
ton, District  of  Columbia. 

"  II.    COURTS-MARTIAL. 

"Aht.  3.  Coukts-martial  classified. — Courts-martial  shall  be  of  three  kinds, 
namely  : 

"  First,  general  courts-martial ; 

"  Second,  special  courts-martial ;   and 

"  Third,  summary  courts-martial. 

"a.  composition. 

"Abt.  4.  Who  may  serve  on   courts-martial. — All  officers  in  the  military 

service  of  the  United  States,  and  officers  of  the  Marine  Corps  when  detached  for 

service  with  the  Army  by  order  of  the  President,  shall  be  competent  to  serve  on 

rtial  for  the  trial  of  any  persons  who  may  lawfully  be  brought  before 

such  courts  for  trial. 

[Note. — This  article  became  effective  on  August  29,  191G.] 

i.  coi  bti -martial. — General  courts-martial  may  consist  of  any 
Dumber  of'officers  from  five  to  thirteen,  inclusive;  but  they  shall  not  consist  of 
less  than  thirteen,  when  that  number  can  be  convened  without  manifest  injury 
to  the  service. 

"Abt.  0.  Special  cotjbts-mabtial.— Special  courts-martial  may  consist  of  any 
number  of  officers  from  three  to  five,  inclusive. 

"Aut.  7.  Siwimary  courts-martial.— A  summary  court-martial  shall  consisl 
of  one  of!",' 

"  I).    BT    WHOM    APPOINTED. 

"Art.  8.  Genebal  c duets-martial.— The  President  of  the  United  States,  the 
commanding  officer  of  a  territorial  division  or  department,  the  Superintendent 
of  the  Military  Academy,  the  commanding  officer  of  an  army,  an  army  corps,  a 


310  MANUAL  FOR  OOX7BT8-MABTIAL. 

division,  or  de,  and,  when  empowered  by  tit.-  President,  the  com- 

piflnfjing  officer  of  any  dlstrld  or  <•!'  any  force  or  body  of  troops  may  appoint 

general  courts-martial;  bul   when  any  sucli  commander  is  the  accuser  or  the 

cutor  of  the  person  <»r  persons  to  be  tried,  the  courl  shall  be  appointed  by 

Buperlor  competent  authority,  and  m>  officer  shall  be  eligible  t<>  sit  as  a  member 

of  such  court  when  in-  is  the  accuser  <>r  a  witness  fur  the  prosecution. 

•w  -mm.    The  commanding  officer  of  a  district,  gar- 

.  fort,  <amp,  or  other  place  where  troops  are  on  duty,  and  the  commao 

:•  of  :i  brigade,  regiment,  detached  battalion,  or  other  detached  command 

may  appoint  special  courts-martial;  bul  when  any  Buch  commanding  officer  is 

the  accuser  or  the  prosecutor  of  the  person  or  persons  to  be  tried,  the  court. 

shall  be  appointed  by  superior  authority,  and  may  in  any  case  be  appointed  by 
lor  authority  when  by  the  latter  deemed  desirable:  and  no  officer  shall  bt 
eligible  to  .-ii  as  a  member  of  such  court  when  he  is  the  accuser  or  a  witness  for 
the  prosecution. 

"Art.  10.  Summary  courts-martial. — The  commanding  officer  of  a  garrison, 

amp,  or  other  place  where  troops  are  on  duty,  and  the  commanding  officer 

regiment,  detached  battalion,  detached  company,  or  other  detachment  may 

appoint  .summary  courts-martial;  but  such  summary  courts-martial  may  in  anj 

be  appointed  by  superior  authority  when  by  the  latter  deemed  desirable: 

Provided,  That  when  but  one  officer  is  present  with  a  command  he  shall  be  the 

summary  court-martial  of  that  command  and  shall  hear  and  determine  cases 

brought  before  him. 

"Art.  11.  Appointment  of  judge  ahvocates. — For  each  general  or  special 
court-martial  the  authority  appointing  the  court  shall  appoint  a  judge  advocate, 
ami  for  each  general  court-martial  one  or  more  assistant  judge  advocates  when 
necessary. 

"  C.    .iriUsniCTION. 

"Abt.  12,  OURTS-MARTIAL. — General  courts-martial  shall  have  power 

t<>  try  any   person  subject  to  military   law  for  any  crime  or  offense  made  pun 

Ishahle  by  those  articles  and  any  other  person  who  by  the  law  of  war  is  subject 

to  trial  by  military  tribunals:  Provided,  That  no  officer  shall  be  brought  to  trial 

general  court-martial  appointed  by  the  Superintendent  of  the  Military 

my. 

"Art.  18.  Special  courts-martial. —  Special  courts-martial  shall  have  power 

to  try  any  person  subject  to  military  law.  except  an  officer,   for  any  crime  or 

capital  made  punishable  by  these  articles:   Provided,  That  the  I'resi 

dent  may,  by  regulations,  which  he  may  modify  from  time  to  time,  except  from 

the  jurisdiction  of  special  courts-martial  any  class  or  classes  of  persons  subject 

CO   military   law. 

"Special  courts-martial  shall  not  have  power  to  adjudge  dishonorable  dis- 
charge, nor  confinement  in  excess  of  six  months,  nor  to  adjudge  forfeiture  of 
more  than  six  months'  pay. 

— This  article  became  effective  on  August  29,  191C] 

"Art.    11.  Summary    courts-martial.— Summary    courts-martial    shall    have 

to  try  any  person  subject  to  military  law,  except  an  officer,  a  cadet,  or  a 

soldier  holding  the  pri\  iierres  of  a  certificate  of  eligibility  to  promotion,  for  any 

.•rime  or  offense  not  capital  made  punishable  by  these  articles:  Provided,  That 

noncommissioned  officers  shall  not.  if  they  object  thereto,  be  brought  to  trial 

a  summary  court-martial   without    the  authority  of  the  officer  competent 

to  bring  them  t.»  trial  before  a  general  court-martial:  Provided  further,  That 
the  President  may,  by  regulations,  which  he  may  modify  from  time  to  time,  ex- 


APPENDICES.  311 

cept  from  the  jurisdiction  of  summary  courts-martial  any  class  or  classes  of 
persons  subject  to  military  law. 

"  Summary  courts-martial  shall  not  have  power  to  adjudge  confinement  In 
excess  of  throe  months,  nor  to  adjudge  the  forfeiture  of  more  than  three  months' 
pay:  Provided,  That  when  the  summary  court  officer  is  also  the  commanding  officer 
no  sentence  of  such  summary  court-martial  adjudging  confinement  at  hard  labor 
or  forfeiture  of  pay,  or  both,  for  a  period  in  excess  of  one  month  shall  he  carried 
into  execution  until  the  same  shall  have  been  approved  by  superior  authority. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Abt.15.  Not  exclusive. — The  provisions  of  these  articles  conferring  jurisdic- 
tion upon  courts-martial  shall  not  be  construed  as  depriving  military  com- 
missions, provost  courts,  or  other  military  tribunals  of  concurrent  jurisdiction  in 
respect  of  offenders  or  offenses  that  by  the  law  of  war  may  be  lawfully  triable 
by  such  military  commissions,  provost  courts,  or  other  military  tribunals. 

[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  1C.  Officers;  how  triable. — Officers  shall  be  triable  only  by  general 
courts-martial,  and  in  no  case  shall  an  officer,  when  it  can  be  avoided,  be  tried 
by  officers  inferior  to  him  in  rank. 

"  D.   PROCEDURE. 

"Art.  17.  Judge  advocate  to  prosecute. — The  judge  advocate  of  a  general  or 
special  court-martial  shall  prosecute  in  the  name  of  the  United  States,  and  shall, 
under  the  direction  of  the  court,  prepare  the  record  of  its  proceedings.  The 
accused  shall  have  the  right  to  be  represented  before  the  court  by  counsel  of  his 
own  selection  for  his  defense,  if  such  counsel  be  reasonably  available,  but  should 
he,  for  any  reason,  be  unrepresented  by  counsel,  the  judge  advocate  shall  from 
time  to  time  throughout  the  proceedings  advise  the  accused  of  his  legal  rights. 

"Art.  18.  Challenges. — Members  of  a  general  or  special  court-martial  may 
be  challenged  by  the  accused,  but  only  for  cause  stated  to  the  court.  The 
court  shall  determine  the  relevancy  and  validity  thereof,  and  shall  not  receive 
a  challenge  to  more  than  one  member  at  a  time. 

"Art.  19.  Oaths. — The  judge  advocate  of  a  general  or  special  court-martial 
shall  administer  to  the  members  of  the  court,  before  they  proceed  upon  any 
trial,  the  following  oath  or  affirmation:  'You,  A.  B.,  do  swear  (or  affirm)  that 
you  will  well  and  truly  try  and  determine,  according  to  the  evidence,  the  matter 
now  before  you,  between  the  United  States  of  America  and  the  person  to  be 
tried,  and  that  you  will  duly  administer  justice,  without  partiality,  favor,  or 
affection,  according  to  the  provisions  of  the  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  United  States,  and  if  any  doubt  should  arise,  not  ex- 
plained by  said  articles,  thou  according  to  your  conscience,  the  best  of  your  un- 
derstanding, and  the  custom  of  war  in  like  cases;  and  you  do  further  swear 
(or  affirm)  that  you  will  not  divulge  the  findings  or  sentence  of  the  court  until 
they  shall  be  published  by  the  proper  authority,  except  to  the  judge  advocate 
and  assistant  judge  advocate;  neither  will  you  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court-martial,  unless  required  to  give 
evidence  thereof  as  a  witness  by  a  court  of  justice  in  due  course  of  law.  So 
help  you  God.' 

"When  the  oath  or  affirmation  has  been  administered  to  the  members  of  a 
general  or  special  court-martial,  the  president  of  the  court  shall  administer  to 
the  Judge  advocate  and  to  each  assistant  judge  advocate,  if  any.  an  oath  or 
affirmation  in  the  following  form:  *  You,  A.  B.,  do  swear   (or  affirm)   that  you 


312  MANUAL   FOR   COURTS- M  AHTI A  I.. 

will  not  divulge  the  findings  or  sentence  of  the  courl  to  any  but  the  proper  au- 
thority until  they  shall  be  duly  disclosed  by  the  same.  Bo  help  you  God.' 
••Ail  persona  who  give  evidence  before  a  court-martial  shall  be  examined  on 
or  affirmation  In  the  following  Conn:  'Ton  Bwear  (or  affirm)  thai  the 
evidence  you  shall  give  In  the  case  now  in  hearing  shall  be  the  truth,  the  whole 
truth,  and  oothlng  bul  the  truth.    So  help  you  God.' 

ery  reporter  of  the  proceedlnga  of  a  court-martial  shall,  before  entering 
upon  his  duties,  make  oath  or  affirmation  In  the  following  form:  Toil  swear 
(or  affirm)    thai   yon  will   faithfully  perform  the  dutiea  of  reporter  to  this 
help  yon  God.' 
,ry  Interpreter  In  the  trial  of  any  case  before  a  court-martial  shall,  be- 
i  Qterlng  upon  his  duties,  make  oath  or  affirmation  In  the  following  form: 
•Yon  Bwear  (or  affirm)  thai  yon  will  truly  Interprel  In  the  case  now  In  hear- 
ing.   So  help  yon  God.1 
••  in  case  of  affirmation  the  closing  sentence  of  adjuration  will  be  omitted. 
..Al:  m  amis.     A  court-martial  may,  for  reasonable  cause,  grant 

a  continuance  to  either  party  for  such  time  and  as  often  as  may  appear  to  be 
Just. 

"Aim.  21.   Refusal  TO   PLEAD. — When  the  accused,   arraigned  before  a  court- 
martial,  from  obstinacy  and  deliberate  design  stands  mute  or  answers  foreign 
to  the  purpose,  the  courl  may  proceed  to  trial  and  Judgment  as  if  he  had  pleaded 
iilty. 
"Abt.22.  Process  to  obtahs  witnesses.— Every  Judge  advocate  of  a  general 
<.r  special  court-martial  and  every  summary  court-martial  shall  have  power  to 
the  like  process  to  compel  witnesses  to  appear  and  testify  which  courts 
Of  the  United  States,  having  criminal  jurisdiction,  may  lawfully  issue;  but  such 
process  shall  run  to  any  part  of  the  United  States,  its  Territories,  and  DOS  •  8- 
sions. 

"Am.  23.  Refusal  to  appeab  ob  testify.— Every  person  not  subject  to  mill- 
Law  who,  being  duly  subpoenaed  to  appear  as  a  witness  before  any  military 
court,  commission,  court  of  inquiry,  or  hoard,  or  before  any  officer,  military  or 
civil,  designated  to  take  a  deposition  to  be  read  in  evidence  before  such  court, 
COmn  Inquiry,  or  board,  willfully  neglects  or  refuses  to  appear, 

or  refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce  documentary  evi- 
dence which  such  person  may  have  been  legally  subpoenaed  to  produce,  shall 
be  detuned  guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished 
Oil  information  In  the  district  court  of  the  United  States  or  in  a  court  of  original 
criminal  Jurisdiction  In  anyof  the  territorial  possessions  of  the  United  states,  jur- 
isdiction being  hereby  conferred  upon  such  courts  for  such  purpose;  and  it  shall 
e  duty  of  the  United  States  district   attorney  or  the  officer  prosecuting  for 
men)   in  any  such  courl  of  original  criminal  jurisdicton.  on  the  certi- 
fication of  the  facts  to  him  by  the  military  court,  commission,  court  of  Inquiry, 
..r  hoard,  to  file  an  information  agalnsl  and  prosecute  the  person  so  offending,  and 
punishmenl  of  such  person,  on  conviction,  shall  be  a  fine  of  nol  more  than 
or   imprisonment    DOl  I    months,   or  both,   at    the  discretion   of 

the  court:  Provided,  Thai    the  fees  of  such  witness  and  his  mileage,  at   the 
allowed  to  witnesses  attending  the  courts  of  the  United  states,  shall  be 

duly  paid  or  tendered  said  witness,  BUCh  amounts  to  he  paid  out  of  the  appro- 
priation for  the  compensation  of  witne 

"Al  •  PROHIBITED.-  NO   witness  before  a 

military  court,  commission,  court  of  Inquiry,  or  board,  «>r  before  any  officer, 
military  <>r  civil,  designated  to  take  a  deposition  to  be  read  In  evidence  before  a 
military  court,  commit    Ion,  courl  of  Inquiry,  or  hoard,  shall  be  compelled  to 


APPENDICES.  313 

incriminate  himself  or  to  answer  any  questions  which  may  tend  to  Incriminate 
or  degrade  him. 

"Abt.  25. — Depositions — When  admissible. — A  duly  authenticated  deposition 
taken  upon  reasonable  notice  to  the  opposite  party  may  be  read  in  evidence  be- 
fore any  military  court  or  commission  in  any  case  not  capital,  or  in  any  pro- 
ceeding before  a  court  of  inquiry  or  a  military  board,  if  such  deposition  be  taken 
when  Che  witness  resides,  is  found,  or  is  about  to  go  beyond  the  State,  Territory, 
or  District  in  which  the  court,  commission,  or  board  is  ordered  to  sit,  or  beyond 
the  distance  of  one  hundred  miles  from  the  place  of  trial  or  hearing,  or  when  it 
appears  to  the  satisfaction  of  the  court,  commission,  board,  or  appointing  au- 
thority that  the  witness,  by  reason  of  age,  sickness,  bodily  infirmity,  imprison- 
ment, or  other  reasonable  cause,  is  unable  to  appear  and  testify  in  person  at 
the  place  of  trial  or  hearing:  Provided,  That  testimony  by  deposition  may  be 
adduced  for  the  defense  in  capital  cases. 

"Abt.  20.  Depositions — Before  whom  taken. — Depositions  to  be  read  in  evi- 
dence before  military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and  authenti- 
cated by  any  officer,  military  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is  taken  to  administer 
oaths. 

"Abt.  27.  Courts  of  inquiry — Records  of,  when  admissible. — The  record  of 
the  proceedings  of  a  court  of  inquiry  may  be  read  in  evidence  before  any  court- 
martial  or  military  commission  in  any  case  not  capital  nor  extending  to  the  dis- 
missal of  an  officer,  and  may  also  be  read  in  evidence  in  any  proceeding  before 
a  court  of  inquiry  or  a  military  board:  Provided,  That  such  evidence  may  be 
adduced  by  the  defense  in  capital  cases  or  cases  extending  to  the  dismissal  of 
an  officer. 

"Abt.  28.  Resignation  without  acceptance  does  not  release  officer. — Any 
officer  who,  having  tendered  his  resignation  and  prior  to  due  notice  of  the 
acceptance  of  the  same,  quits  his  post  or  proper  duties  without  leave  and  with 
intent  to  absent  himself  permanently  therefrom  shall  be  deemed  a  deserter. 

"Abt.  20.  Enlistment  without  discharge. — Any  soldier  who,  without  having 
first  received  a  regular  discharge,  again  enlists  in  the  Army,  or  in  the  militia 
when  in  the  service  of  the  United  States,  or  in  the  Navy  or  Marine  Corps  of  the 
United  States,  or  in  any  foreign  army,  shall  be  deemed  to  have  deserted  the 
service  of  the  United  States;  and.  where  the  enlistment  Is  in  one  of  the  forces 
of  the  United  States  mentioned  above,  to  have  fraudulently  enlisted  therein. 
[Note. — This  article  became  effective  on  August  29,  1916.] 

"Art.  30.  CLOSED  sessions.— Whenever  a  general  or  special  court-martial  shall 
sit  in  closed  session,  the  judge  advocate  and  the  assistant  judge  advocate,  if  any. 
shall  withdraw;  and  when  their  legal  advice  or  their  assistance  in  referring  to 
the  recorded  evidence  is  required,  it  shall  be  obtained  in  open  court  and  in  the 
presence  of  the  accused  and  of  his  counsel  if  there  be  any. 

••A  OTTNG. — Members  of  a  general  or  special  court-martial,  in 

giving  their  votes,  shall  begin  with  the  junior  in  rank. 

"Abt.  32.   I  I. — A  court-mart iai  may  punish  at  discretion,  subject  to 

the  limitations  contained  in  Article  fourteen,  any  person  who  uses  any  menacing 
words,  signs,  or  gestures  in  its  presence,  or  who  disturbs  its  proceedings  by  any 
riot  or  disorder. 

"Art.  33.  Records — General  cxnJBTe-itABTiAL.— Each  general  court-martial 
shall  keep  a  separate  record  of  its  proceedings  in  the  trial  of  each  rase  brought 
b.-fore  it,  and  such  record  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  judge  advocate;  but  in  cast    the  record  can  not  be  authenticated 


314  MANUAL    FOB  COURTS-MARTIAL. 

e  Judge  advocate,  by  reason  of  his  death,  disability,  or  absence,  it  shall  be 

-ill. •m  and  an  assistant  Judge  advocate,  if  any;  and  if  there 

ludge  advocate,  or  In  case  of  his  death,  disability,  or  absence, 

t:  en  bj  the  president  and  one  other  member  <>f  the  court 

"Ast.   84.    Re©  v.aky    ooubts-mabtiai. — Each   special 

martial  and  each  summary  court-martial  shall  keep  a  record  of  its  proceed- 

Beparate  tor  each  case,  which  record  shall  contain  such  matter  and  h> 

authenticated  In  Buch  manner  as  may  be  required  by  regulations  which  the 

enl  may  from  ii to  time  prescribe. 

••A  •       TiAT.. — The  judge  advo- 

ral  court-martial  shall,  with  such  expedition  as  circumstances 
permit,  forward  to  the  appointing  authority  or  to  his  successor  in  com- 
mand the  original  record  of  the  proceedings  of  such  court  in  the  trial  of  each 
da  of  such  proceedings  shall,  after  having  been  finally  acted 
upon,  be  transmitted  to  the  Judge  Advocate  General  of  the  Army. 
-Aim.  .".<;.  Disposition  of  beoobds — Spkhm.  and  bummary  cqtjbts-mabttat. — 
having  horn  acted  upon  hy  the  officer  appointing  the  court,  or  by  the  officer 
anding  for  the  time  being,  the  record  of  each  trial  by  special  court-martial 
i  report  of  each  trial  by  summary  court-martial  shall  be  transmitted  t< 
d  readquarters  as  the  Presidenl  may  designate  in  regulations,  there 
to  be  Bled  In  the  office  of  the  Judge  advocate.    When  no  longer  of  use,  records 
i.d  and  summary  courts-martial  may  be  destroyed. 
'Aim.   .".7.    Irregular]  i  n  .s-  -Ki  i  kct   ok. — The   proceedings  of  a   court-martial 
shall  not  be  hold  Invalid,  nor  the  findings  or  sentence  disapproved,  in  any  case 
on  the  ground  of  improper  admission  or  rejection  of  evidence  or  for  any  error 
any  matter  of  pleading  or  procedure  unless  in  the  opinion  of  the  reviewing 
inflrming   authority,   after   an   examination  of   the  entire  proceedings,   it 
Bhall  appear  thai  the  error  complained  of  has  injuriously  affected  the  substan- 
tial rights  of  an  accused:  Provided,  Thai  the  act  or  omission  upon  which  tin 
•d  has  been  tried  constitutes  an  offense  denounced  and  made  punishable 
•  or  more  of  these  articles:  Provided  further,  That  the  omission  of  the 
-  'hard  labor'  in  any  sentence  of  a  court-martial  adjudging  imprisonment 
mfinemenl   shall  not   he  construed  as  depriving  the  authorities  executing 
sentence  Of   imprisonment   or  confinement  of  the  power  to  require  bard 
Inbor  as  a  part  of  the  punishment  in  any  case  where  it  is  authorized  by  the 
\e  order  prescribing  maximum  punishments. 
"A  o.kvi    may    prescribe   BtrLEs. — The   President   may  by   regula- 

lo.h  be  may  modify  from  time  1o  time,  prescribe  the  procedure,  Includ- 
ing modes  Of  proof,  In  cases  before  courts-martial,  courts  of  inquiry,  militarj 
commissions,  and  other  military  tribunals:  Provided,  That  nothing  contrary  to 
Or  inconsistent  with  these  articles  shall  be  SO  prescribed:  Provided  further 
That  all  rules  made  in  pursuance  of  this  article  shall  he  laid  before  the  Congress 
annually. 

LIMITATIONS  UPON    PROSECUTIONS. 

"Aim.  89.  As  to  TIME, — Except  for  desertion  committed  in  time  of  war.  or 
for  mutiny  or  murder,  no  person  subject  to  military  law  shall  be  liable  to  be 
tried  or  punished  by  a  court-martial  tor  any  crime  or  offense  committed  mow 
than  two  years  before  the  arraignmenl  of  such  person:  Provided,  That  for  de- 
sertion in  time  of  peace  or  for  any  crime  or  offense  punishable  under  articles 
ninety-three  and  ninety-four  of  this  code  the  period  Of  limitations  upon  trial  and 
hmenl  by  court-martial  shall  be  three  years:  Provided  further,  That  the 
of  the  accused  from  the  jurisdiction  of  the  United  States, 


APPENDICES.  315 

« 

and  also  any  period  during  which  by  reason  of  some  manifest  impediment  the 
accused  shall  not  have  been  amenable  to  military  just  ire,  shall  be  excluded  in 
computing  the  aforesaid  periods  of  limitation:  And  provided  further,  That  this 
article  shall  not  have  the  effect  to  authorize  the  trial  or  punishment  for  any 
crime  or  offense  barred  by  the  provisions  of  existing  law. 

"Art.  40.  As  to  number. — No  person  shall  be  tried  a  second  time  for  the  same 
offense. 

"  F.    PUNISHMENTS. 

"Art.  41.  Certain  kinds  prohibited.— Punishment  by  flogging,  or  by  brand- 
ing, marking,  or  tattooing  on  the  body  is  prohibited. 

"Art.  42.  Places  of  confinement — When  lawful. — Except  for  desertion  in 
time  of  war,  repeated  desertion  in  time  of  peace,  and  mutiny,  no  person  shall 
under  the  sentence  of  a  court-martial  be  punished  by  confinement  in  a  peni- 
tentiary unless  an  act  or  omission  of  which  he  is  convicted  is  recognized  as  an 
offense  of  a  civil  nature  by  some  statute  of  the  United  States,  or  at  the  common 
law  as  the  same  exists  in  the  District  of  Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless,  also,  the  period  of  confinement  authorized  and 
adjudged  by  such  court-martial  is  one  year  or  more:  Provided,  That  when  a 
sentence  of  confinement  is  adjudged  by  a  court-martial  upon  conviction  of  two 
or  more  acts  or  omissions  any  one  of  which  is  punishable  under  these  articles 
by  confinement  in  a  penitentiary,  the  entire  sentence  of  confinement  may  be 
executed  in  a  penitentiary:  Provided  further,  That  penitentiary  confinement 
hereby  authorized  may  be  served  in  any  penitentiary  directly  or  indirectly 
under  the  jurisdiction  of  the  United  States:  Provided  further,  That  persons 
sentenced  to  dishonorable  discharge  and  to  confinement  not  in  a  penitentiary 
shall  be  confined  in  the  United  States  Disciplinary  Barracks  or  elsewhere  as 
the  Secretary  of  War  or  the  reviewing  authority  may  direct,  but  not  in  a 
penitentiary. 

"Akt.  43.  Death  sentence: — When  lawful. — No  person  shall,  by  general 
court-martial,  be  convicted  of  an  offense  for  which  the  death  penalty  is  made 
mandatory  by  law,  nor  sentenced  to  suffer  death,  except  by  the  concurrence  of 
two-thirds  of  the  members  of  said  court-martial  and  for  an  offense  in  these 
articles  expressly  made  punishable  by  death.  All  other  convictions  and  sen- 
tences, whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present. 

"Art.  44.  Cowardice  ;  fraud — Accessory  penalty. — When  an  officer  is  dis- 
missed from  the  servce  for  cowardice  or  fraud,  the  crime,  punishment,  name, 
and  place  of  abode  of  the  delinquent  shall  be  published  in  the  newspapers  in 
and  about  the  camp  and  in  the  State  from  which  the  offender  came  or  where 
he  usually  resides;  and  after  such  publication  it  shall  be  scandalous  for  an 
officer  to  associate  with  him. 

"Art.  45.  Maximum  limits. — Whenever  the  punishment  for  a  crime  or  offense 
made  punishable  by  these  articles  is  left  to  the  discretion  of  the  court-martial, 
the  punishment  shall  not,  in  time  of  peace,  exceed  such  limit  or  limits  as  the 
President  may  from  time  to  time  prescribe. 

"  g.  action  by  appointing  or  superior  authority. 

"Art.  46.  Approval  and  execution  of  sentence. — No  sentence  of  a  court- 
martial  shall  be  carried  into  execution  until  the  same  shall  have  been  approved 
by  the  officer  appointing  the  court  or  by  the  officer  commanding  for  the  time 
being. 


316  MANT.M.    FOB    OOUBTB-MABTIAL. 

"Art.  -17.  Powers  in<  ii'i.Ni  ro  power  to  approve.  The  power  to  approve  the 
sentence  of  b  court-martial  shall  be  held  to  Include: 

"(a)  The  power  to  approve  or  disapprove  a  finding  and  to  approve  only  so 

much  of  a  finding  <>f  guilty  of  a  particular  offense  ms  involves  :i  finding  of 

guilt;  of  a  lesser  Included  offense  when,  in  the  opinion  of  the  authority  having 

power  i"  approve,  the  evidence  of  record  requires  a  finding  of  only  the  Lesser 

.  iiilt  ;  and 

"(b)  The  power  1"  approve  or  disapprove  the  whole  or  any  part  of  the 
sentence. 

[Note — This  article  became  effective  on  August  29,  ion;.] 

"Aim.  is.  Confirmation-  When  required. — In  addition  to  the  approval  re- 
quired by  article  forty-six,  confirmation  by  the  President  Is  required   In  the 

following  eases  before  the  sentence  of  a  court-martial  is  carried  into  execution, 

namely  : 

M(a)  Any  sentence  respecting  a  general  officer; 

••id)  Any  sentence  extending  to  the  dismissal  of  an  officer,  except  that  in 
time  of  war  a  sentence  extending  to  the  dismissal  of  an  officer  below  the  grade 
of  brigadier  general  may  be  carried  Into  execution  upon  continuation  by  the 
commanding  general  of  the  Army  In  the  field  or  by  the  commanding  general  of 
the  territorial  department  or  division; 

"(c)    Any  sentence  extending  to  the  suspension  or  dismissal  of  a  cadet;  and 

"  (d)   Any  sentence  of  death,  except  in  the  cases  of  persons  convicted  in  time 

Of  war  of  murder,   rape,  mutiny,  desertion,  or  as  spies;   and   in   such   excepted 

B  Sentence  Of  death  may  be  carried  into  execution  upon  confirmation  by 

the  commanding  general  of  the  Army  in  the  field  or  by  the  commanding  general 

of  the  territorial  department  or  division. 

"  When  the  authority  competent  to  confirm  the  sentence  has  already  acted  as 
the  approving  authority  no  additional  confirmation  by  him  Is  necessary. 

"Art.  -1!>.  POWERS  INCIDENT  TO  POWER  to  CONFIRM. — The  power  to  confirm  the 
sentence  of  a  court-martial  shall  be  held  to  include: 

"(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to  confirm  so  much 
only  of  a  finding  of  guilty  of  a  particular  offense  as  involves  a  finding  of  guilty 
lesser  included  offense  when,  in  the  opinion  of  the  authority  having  power 
to  confirm,  the  evidence  of  record  requires  a  finding  of  only  the  les 
of  guilt  ;  and 

"(b)  The  power  to  confirm  or  disapprove  the  Whole  or  any  part  of  the  sen- 
tence. 

[Note. — This  article  became  effective  on  August  29,  1910.] 

"Art.  .".o.  Mitigation  ob  remission  of  sentences.— The  power  to  order  the 

ttlon  of  the  sentence  adjudged  by  a  court-martial  shall  he  held  to  include, 
inter  alia,  the  power  to  mitigate  or  remit  the  whole  or  any  pari  of  the  sentence, 
but  no  sentence  of  dismiss!  of  an  officer  and  no  sentence  of  death  shall  he 
mitigated  or  remitted  by  any  authority  inferior  to  the  President 

"Any   unexecuted   portion  of  a   sentence  adjudged  by  a  court-martial   may  he 

mitigated  or  remitted  bj  the  military  authority  competent  to  appoint,  for  the 
command,  exclusive  <<f  penitentiaries  and  the  United  states  Disciplinary  Bar- 
In  Which  the  person  under  sentence  is  held,  a  court  of  the  kind  that   im- 

:  the  sentence,  and  the  game  power  may  he  o.er.ised  by  superior  military 
authority;  hut  no  sentence  extending  to  the  dismissal  of  an  officer  or  loss  of 

no  sent. 'nee  of  death,  and  no  sentence  approved  or  confirmed  by  the  Presi- 
dent shall  he  remitted  or  mitigated  1>\    any  other  authority. 

••The  power  of  remission  and  mitigation  shall  extend  to  all  uncollected  for- 
feitures adj  ntence  of  a  court-martial. 


APPENDICES.  317 

"Art.  51.  Suspension  of  sentences  of  dismissal  oe  death. — The  authority 
competent  to  order  the  execution  of  a  sentence  of  dismissal  of  an  officer  or  a 
sentence  of  death  may  suspend  such  sentence  until  the  pleasure  of  the  President 
be  known,  and  in  ease  of  such  suspension  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  record  of  trial,  shall  immediately  be  transmitted 
to  the  President. 

"Art.  ~>2.  Suspension  of  sentences. — The  authority  competent  to  order  the 
execution  of  the  sentence  of  a  court-martial  may,  at  the  time  of  the  approval  of 
such  sentence,  suspend  the  execution,  in  whole  or  in  part,  of  any  such  sentence 
as  does  cot  extend  to  death,  and  may  restore  the  person  under  sentence  to  duty 
during  such  suspension.  A  sentence,  or  any  part  thereof,  winch  has  been  so 
suspended  may  be  remitted,  in  whole  or  in  part,  except  in  eases  of  persons 
confined  in  the  United  States  Disciplinary  Barracks  or  its  branches,  by  the 
officer  who  suspended  the  same,  by  his  successor  in  office,  or  by  any  officer  exer- 
cising appropriate  court-martial  jurisdiction  over  the  command  in  which  the 
person*  under  sentence  may  be  serving  at  the  time,  and,  subject  to  the  foregoing 
exceptions,  tin-  same  authority  may  vacate  the  order  of  suspension  at  any  time 
and  order  the  execution  of  the  sentence  or  the  suspended  part  thereof  in  so 
far  as  the  same  shall  not  have  been  previously  remitted.  The  death  or  honor- 
able  discharge  of  a  person  under  suspended  sentence  shall  operate  as  a  complete 
remission  of  any  unexecuted  or  unremitted  part  of  such  sentence.  (See  Ch.  X, 
Army  appropriation  act  of  July  9,  1918:  Public" No.  193,  65th  Cong.) 

"Art.  53.  Execution  or  remission  —  Confinement  in  disciplinary  bab- 
backs. — When  a  sentence  of  dishonorable  discharge  has  been  suspended  until 
the  soldier's  release  from  confinement,  the  execution  or  remission  of  any  part 
of  his  sentence  shall,  if  the  soldier  be  confined  in  the  United  States  Disciplinary 
Barracks,  or  any  branch  thereof,  be  directed  by  the  Secretary  of  War.  (See 
Ch.  X,  Army  appropriation  act  of  July  9,  1918:  Public  No.  193,  65th  Cong.) 

"  III.  Punitive  Articles. 

"a.  enlistment;  muster;  returns. 

"Art.  54.  Fraudulent  enlistment. — Any  person  who  shall  procure  himself 
to  he  enlisted  in  the  military  service  of  the  United  States  by  means  of  willful 
misrepresentation  or  concealment  as  to  his  qualifications  for  enlistment,  and 
shall  receive  pay  or  allowances  under  such  enlistment,  shall  be  punished  as  a 
court-martial  may  direct. 

"Abt.  55.  Officer  making  unlawful  enlistment. — Any  officer  who  know- 
ingly enlists  or  musters  into  the  military  service  any  person  whose  enlistment 
or  muster  in  is  prohibited  by  law,  regulations,  or  orders  shall  be  dismissed 
from  the  service  or  suffer  such  other  punishment  as  a  court-martial  may  direct. 

"Art.  56.  Muster  rolls — False  muster. — At  every  muster  of  a  regiment, 
troop,  battery,  or  company  the  commanding  officer  thereof  shall  give  to  the 
mustering  officer  certificates,  signed  by  himself,  stating  how  long  absent  officers 
have  been  absent  and  the  reasons  of  their  ahsence.  And  the  commanding  officer 
r.v  troop,  battery,  or  company  shall  give  like  certificates,  stating  how  long 
absent  noncommissioned  officers  and  private  soldiers  have  been  absent  and 
the  reasons  of  their  absence.  Such  reasons  and  time  of  absence  Shall  be  in- 
serted in  the  muster  rolls  opposite  the  names  of  the  respective  absent  officers 
and  soldiers,  and  the  certificates,  together  with  the  muster  rolls,  shall  be  trans- 
d  by  the  mustering  officer  to  the  Department  of  War  as  speedily  as  the 
distance  of  the  place  and  muster  will  admit.  Any  officer  who  knowingly  makes 
a  false  muster  of  man  or  animal,  or  who  signs  or  directs  or  allows  the  signing 


318  MANUAL  FOB  COURTS- MARTIAL. 

of  any  mustier  roll  knowing  the  same  to  contain  a  false  muster  or  false  state- 
ment as  i"  the  absence  or  pay  of  an  officer  <>r  soldier,  <>r  who  wrongfully  takes 
or  other  consideration  on  mustering  In  a  regiment,  company,  or  other 
,.  or  on  Blgnlng  muster  rolls,  or  who  knowingly  musters  as  an  officer 
person  who  is  not  such  officer  or  Boldler,  shall  be  dismissed  from 
rtce  and  Buffer  such  other  punishment  as  a  court-martial  may  direct 
••  \  Omissus  to  bendeb  betorns. — Every  officer  corn- 

man,  □  Independent  troop,  battery,  or  company,  or  a  garrison 

shall,  in  the  beginning  of  every  month,  transmit  through  the  proper  channels, 
•  Department  of  War,  an  exact  return  of  the  same.     Every  officer  whose 
duty  it  is  to  render  to  the  War  Department  or  other  superior  authority  a  return 
of  the  stato  of  the  troops  under  his  command,  or  of  the  arms,  ammunition, 
r  property  thereunto  belonging,  who  knowingly  ma 
..•turn  thereof  shall  be  dismissed  from  the  service  and  suffer  such  other 
punishment  as  a  court-martial  may  direct.    And  any  officer  who.  through  neglect 
Ign,  omits  to  render  such  return  shall  be  punished  as  a  court-martial  may 
ee  Ch.  X.  Army  appropriation  act  of  July  <).  1918:  Public  No.  193, 
66th  Cong.) 

"  It.    DESERTION  ;    ABSENCE    WITHOUT   LEAVE. 

"Art.  68.  Desertion. — Any  person  subject  to  military  law  who  deserts  or 
attempts  to  desert  the  service  of'the  United  States  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment  as  a  court-martial 
may  direct,  and,  If  the  offense  be  committed  at  any  other  time,  any  punish- 
ment, excepting  death,  that  a  court-martial  may  direct. 

"Ast.  59.  Advising  ok  aiding  another  to  desebt. — Any  person  subject  to 
military  law  who  advises  or  persuades  or  knowingly  assists  another  to  desert 
the  service  of  the  United  States  shall,  if  the  offense  be  committed  in  time  of 
war,  suffer  death,  or  such  other  punishment  as  a  court-martial  may  direct,  and, 
if  the  offense  he  committed  at  any  other  time,  any  punishment,  excepting  death, 
that  a  court-martial  may  direct. 

"AST.  80.   Ek  ii  kiaimm;  a  i  Any  officer  who,  after  having  discovered 

thai  a  soldier  in  his  command  is  a  deserter  from  the  military  or  naval  service 

or   from   the   Marine  Corps,   retains  such  deserter  in  his  command  without  in- 

forming  superior  authority  or  the  commander  of  the  organization  to  which  th< 

ter  belongs,  Shall  he  punished  as  a  court-martial  may  direct. 

"Abt.  61.  Absence  without  leave. — Any  person  subject  to  military  law  who 
fails  to  repair  at  the  ii\ed  time  to  the  properly  appointed  place  of  duty,  or 
from   the   same   without    proper   Leave,  or   absents   himself   from   his  command 
guard,  quarters,  station,  or  camp  without   proper  leave,  shall  be  punished  as  a 
court-martial  may  direct. 

"o.  disrespect;    insubordination;    mutiny. 

••A'  toward    the    President,    Vice    President,    Congress, 

OVEBNORS,  LEGISLATURES.  Any  oflicer  who  uses  contemptu- 
ous or  disrespectful  words  agalnsl  the  President,  Nice  President,  the  Congress 
of  the  United  states,  ihe  Secretary  of  War,  or  the  governor  or  Legislature  of  any 
State,  Territory,  or  other  possession  of  the  United  Stales  in  which  he  is 
quartered  shall  he  dismissed  from  the  service  or  suffer  such  other  punishment 
as  a  court-martial  may  direct  Anj  other  person  Bubject  to  military  law  who 
uds  shall  i.e  punished  as  a  court-martial  may  direct. 


APPENDICES.  319 

"Art.  63.  Disrespect  toward  superior  officer. — Any  person  subject  to  mili- 
tary law  who  behaves  himself  with  disrespect  toward  his  superior  officer  shall 
be  punished  as  a  court-martial  may  direct 

"Art.  64.  Assaulting  ob  willfully  disobeying  superior  officer. — Any  person 
subject  to  military  law  who,  on  any  pretense  whatsover,  strikes  his  superior 
officer  or  draws  or  lilts  up  any  weapon  or  offers  any  violence  against  him,  being 
in  the  execution  of  his  office,  or  willfully  disobeys  any  lawful  command  of  his 
superior  officer,  shall  suffer  death  or  such  other  punishment  as  a  court-martial 
may  direct. 

"Art.  65.  Insubordinate  conduct  toward  noncommissioned  officer. — Any 
soldier  who  strikes  or  assaults,  or  who  attempts  or  threatens  to  strike  or 
assault,  or  willfully  disobeys  the  lawful  order  of  a  noncommissioned  officer 
while  in  the  execution  of  his  office,  or  uses  threatening  or  insulting  language, 
or  behaves  in  an  insubordinate  or  disrespectful  manner  toward  a  noncommis- 
sioned officer  while  in  the  execution  of  his  office,  shall  be  punished  as  a  court- 
martial  may  direct. 

"Art.  66.  Mutiny  or  sedition. — Any  person  subject  to  military  law  win . 
attempts  to  create  or  who  begins,  excites,  causes,  or  joins  in  any  mutiny  oi 
sedition  in  any  company,  party,  post,  camp,  detachment,  guard,  or  other  com- 
mand shall  suffer  death  or  such  other  punishment  as  a  court-martial  may 
direct. 

"Art.  67.  Failure  to  suppress  mutiny  or  sedition. — Any  officer  or  soldier 
who.  being  present  at  any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor 
to  suppress  the  same,  or  knowing  or  having  reason  to  believe  that  a  mutiny 
or  sedition  is  to  take  place,  does  not  without  delay  give  information  thereof 
to  his  commanding  officer  shall  suffer  death  or  such  other  punishment  as  a 
court-martial  may  direct. 

•Art.  68.  Quarrels;  frays;  disorders. — All  officers  and  noncommissioned 
officers  have  power  to  part  and  quell  all  quarrels,  frays,  and  disorders  among 
persons  subject  to  military  law  and  to  order  officers  who  take  part  in  the  same 
into  arrest,  and  other  persons  subject  to  military  law  who  take  part  in  the 
same  into  arrest  or  confinement,  as  circumstances  may  require,  until  their 
proper  superior  officer  is  acquainted  therewith.  And  whosoever,  being  so  ordered 
refuses  to  obey  such  officer  or  .noncommissioned  officer  or  draws  a  weapon 
upon  or  otherwise  threatens  or  does  violence  to  him  shall  be  punished  as  a 
court-martial  may  direct. 

"  D.    ARREST  ;    CONFINEMENT. 

"Art.  69.  Arrest  or  confinement  of  accused  persons. — An  officer  charged 
with  crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in 
arrest  by  the  commanding  officer,  and  in  exceptional  cases  an  officer  so  charged 
may  l.e  placed  in  confinement  by  the.  same  authority.  A  soldier  charged  with 
crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in  confine- 
ment, and  when  charged  with  a  minor  offense  he  may  be  placed  in  arrest. 
Any  other  person  subject  to  military  law  charged  with  crime  or  with  a  serious 
offense  under  these  articles  shall  be  placed  in  confinement  or  in  arrest,  as 
circumstances  may  require;  and  when  charged  with  a  minor  offense  such 
person  may  be  placed  in  arrest.  Any  person  placed  in  arrest  under  the  pro- 
visions of  this  article  shall  thereby  be  restricted  to  his  barracks,  quarters, 
or  tent,  unless  such  limits  shall  be  enlarged  by  proper  authority.  Any  officer 
who  breaks  his  arrest  or  who  escapes  from  confinement  before  he  is  set  at 
liberty  by  proper  authority  shall  he  dismissed  from  the  service  or  suffer  such 
other  punishment  as  a  court-martial  may  direct ;  and  any  other  person  subject 
to  military  law  who  escapes  from  confinement  or  who  breaks  his  arrest  before 


320  MANUAL   FOB   OOUBTS-MABTIAL. 

be  i>  Kl  in  liberty  by  proper  authority  shall  be  punished  as  a  court-martial 
may  direct 

••  \  flOATION     01      AMI    ACTION     UPON     CHABGKS.       No     person     put    in 

arreei  shall  be  continued  in  confinement  hh.it  than  eight  days,  or  until  such 
court-martial  can  he  assembled.  When  any  person  is  put  in  arrest 
f,.r  the  purpose  of  trial,  except  at  remote  military  posts  <»•  stations,  the  officer 
by  whose  order  he  is  arrested  shall  Bee  that  a  copy  of  the  charges  on  which 
be  is  to  be  tried  is  served  apon  him  within  eight  days  after  his  arrest,  ami  that 
trial  within  ten  days  thereafter,  unless  the  necessities  of  the 

■    .(„•),  trial;  and   then  he  shall  he  brought   to  trial   within  thirty 

■  he  expiration  or  said  ten  days,     if  a  copy  of  the  charges  he  not 
,:    ,,,.  ,!„.  arrested  person  be  nol  broughl  to  trial,  as  herein  required,  the 
arrest  Bha  '  persons  released  from  arrest,  under  the  provisions  of 

tins  article,  may  he  tried,  whenever  the  exigencies  of  the  service  shall  permit, 
within  twelve  months  after  such  release  from  arrest:  Provided,  That  in  time  of 
peace  no  person  shall,  against  his  objection,  be  brought  to  trial  before  a  general 
court-martial  within  a  period  of  live  days  subsequent  to  the  service  of  charges 
upon  him. 

"Art.  71.  Refusal  to  receive  ami  keep  prisoners-  No  provost  marshal  or 

commander  of  a  guard  shall  refuse  to  receive  or  keep  any  prisoner  committed 
to  his  charge  by  an  officer  belonging  to  the  forces  of  the  United  States,  provided 
the  officer  committing  shall,  at  the  time,  deliver  an  account  in  writing,  signed 
by  himself,  of  the  crime  or  offense  charged  against  the  prisoner.  Any  officer 
Idler  so  refusing  shall  he  punished  as  a  court-martial  may  direct. 

"Art.  72.  EIepobt  of  pbisokbbs  received.— Every  commander  of  a  guard  to 
Whose  Charge  a  prisoner  is  committed  shall,  within  twenty-four  hours  after  such 
confinement,  or  as  SOOn  as  he  is  relieved  from  his  guard,  report  in  writing  ti 
commanding  officer  the  name  of  such  prisoner,  the  offense  charged  against 
him,  and  the  name  of  the  officer  committing  him;  and  if  he  fails  to  make  such 
report   he  shall  he  punished  as  a  court-martial  may  direct. 

-A  sim;  prisoner  without  proper  authority;— Any  person  sub- 

ject to  military  law  who.  without  proper  authority,  releases  any  prisoner  >  uly 
committed  to  his  charge,  or  who  through  neglect  or  design  suffers  any  prisoner 
;.,,  committed    to  escape,   shall   he  punished    as.  a    court-martial   may   direct. 

"Art.  7-t.  Deliver!   or  offenders  to  civil  authorities. — When  any  person 

BUbjed    to  military   law.  except   one  who  is  held  by   the  military  authorities  to 

answer,  or  who  is  awaiting  trial  or  result  of  trial,  or  who  is  undergoing  sentence 

B    crime  or  offense  punishable   under   these  articles,    is  accused   of  a   crime 

or  offense  committed  within  the  geographical  limits  of  the  States  of  the  Union 

the   District   of  Columbia,  ami  punishable  h>    the  laws  of  the  land,  the 

commanding  officer  is  required,  except  in  time  of  war,  upon  application  duly 

made,  to  use  his  utmosl  endeavor  to  deliver  over  such  accused  person  to  the 

authorities,  or  to  aid  the  officers  of  justice  in  apprehending  and  securing 

him.   in  order   that    lie  may   he  broughl    to  trial.      Any    commanding  officer   who 

upon  such  application  refuses  or  willfully  m  spl   in  time  of  war.  to 

deliver* over  Buch  accused  person  to  the  civil  authorities  or  to  aid  the  officers 

m,  apprehending  and  securing  him  shall  he  dismissed  from  the  service 
or  suffer  such  other  punishment  as  a  court-martial  may  direct. 

"When,    under    the    provisions   of   this   article,   delivery    Is   made   to    the   civil 

authorities  of  an  offender  undergoing  sentence  of  a  court-martial,  such  delivery, 
i  onvictlon,  shall  in-  held  to  interrupt  the  execution  of  the  sentence 
of  the  court-martial,  and  the  offender  shall  he  returned  to  military  custody, 
having  answered  to  the  civil  authorities  for  his  offense,  for  the  co 

tion  of  the  said  court  -mart  ial  sentence. 


APPENDICES.  321 

"  E.     WAR    OFFENSES. 

"Abt.  75. — Misbehavior  before  the  enemy. — Any  officer  or  soldier  who  mis- 
behaves himself  before  the  enemy,  runs  away,  or  shamefully  abandons  or 
delivers  up  any  fort,  post,  camp,  guard,  or  other  command  which  it  is  his 
duty  to  defend,  or  speaks  words  inducing  others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plunder  or  pillage,  or 
by  any  means  whatsoever  occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death  or  such  other  punishment  as  a  court-martial  may  direct. 

"Art.  76.  Subordinates  compelling  commander  to  surrender. — If  any  com- 
mander of  any  garrison,  fort,  post,  camp,  guard,  or  other  command  is  com- 
pelled, by  the  officers  or  soldiers  under  his  command,  to  give  it  up  to  the  enemy 
or  i"  abandon  it,  the  officers  or  soldiers  so  offending  shall  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

"Art.  77.  Improper  use  of  countersign. — Any  person  subject  to  military  law 
Who  makes  known  the  parole  or  countersign  to  any  person  not  entitled  to  re- 
ceive it  according  to  the  rules  and  discipline  of  war,  or  gives  a  parole  or 
countersign  different  from  that  which  he  received,  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment  as  a  court- 
martial  may  direct. 

"Art.  78.  Forcing  a  safeguard. — Any  person  subject  to  military  law  who, 
in  time  of  war,  forces  a  safeguard  shall  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct. 

"Art.  79.  Captured  property  to  be  secured  for  public  service. — All  public 
property  taken  from  the  enemy  is  the  property  of  the  United  States  and  shall 
be  secured  for  the  service  of  the  United  States,  and  any  person  subject  to 
military  law  who  neglects  to  secure  such  property  or  is  guilty  of  wrongful 
appropriation  thereof  shall  be  punished  as  a  court-martial  may  direct. 

"Art.  80.  Dealing  in  captured  or  abandoned  property. — Any  person  subject 
to  military  law  who  buys,  sells,  trades,  or  in  any  way  deals  in  or  disposes 
of  captured  or  abandoned  property,  whereby  he  shall  receive  or  expect  any 
profit,  benefit,  or  advantage  to  himself  or  to  any  other  person  directly  or  in- 
directly connected  with  himself,  or  who  fails  whenever  such  property  comes 
into  his  possession  or  custody  or  within  his  control  to  give  notice  thereof 
to  the  proper  authority  and  to  turn  over  such  property  to  the  proper  authority 
without  delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment, or  by  such  other  punishment  as  a  court-martial,  military  commission,  or 
other  military  tribunal  may  adjudge,  or  by  any  or  all  of  said  penalties. 

"Art.  81.  Relieving,  corresponding  with,  or  aiding  the  enemy. — Whosoever 
relieves  the  enemy  with  arms,  ammunition,  supplies,  money,  or  other  thing,  or 
knowingly  harbors  or  protects  or  holds  correspondence  with  or  gives  intelli- 
gence to  the  enemy,  either  directly  or  indirectly,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  or  military  commission  may  direct. 

"Art.  82.  Spies. — Any  person  who  in  time  of  war  shall  be  found  lurking  or 
acting  as  a  spy  in  or  about  any  of  the  fortifications,  posts,  quarters,  or  encamp- 
ments of  any  of  the  armies  of  the  United  States,  or  elsewhere,  shall  be  tried 
by  a  general  court-martial  or  by  a  military  commission,  and  shall,  on  conviction 
thereof,  suffer  death. 

"f.  miscellaneous  crimes   AM)  offenses. 

"Art.    83.      Military    property — Willful    or    negligent    loss,    damage,    ob 
wrongful  disposition — Any  person  subject   to  military   law  who   willfully,   or 
through  neglect,  Buffers  to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed  of, 
53915°— 18 22 


MANUAL   FOB   COURTS  MARTIAL. 

any  military  property  belonging  to  the  United  States  shall  make  good  the  loss 
<>r  damage  and  suffer  such  punishment  as  a  court-martial  may  direct 

■•Am  B4.     Waste  ob  i  wiawtul  disposition  oj  mhjtabx  pbopebty  issued  to 

\n\    Boldler   who  Bells  or   wrongfully   disposes  of  or  willfully  or 

through  neglect  injures  or  loses  any  horse,  arms,  ammunition,  accoutermenta, 

equipment,  clothing,  or  other  properly  Issued  Cor  use  In  the  military  service, 

shall  i>e  punished  as  a  court-martial  may  direct 

•Aim.  85.  DRUNE  on  di  nr.  Any  officer  who  is  found  drunk  on  duty  shall,  if 
the  offense  be  committed  in  time  of  war.  be  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct;  and  if  the  offense 
be  committed  in  time  of  peace,  la-  shall  lie  punished  as  a  court-martial  may 
direct  Any  person  subject  to  military  law,  except  an  officer,  who  is  found 
drunk  on  duty  shall  he  punished  as  a  court-martial  may  direct. 

"Abt.  86.  Misbehaviob  oi  skxtinel. — Any  sentinel  who  is  found  drunk  or 
Bleeping  upon  his  post  or  who  leaves  it  before  he  is  regularly  relieved,  shall, 
if  the  offense  !»<■  committed  in  time  of  war,  suffer  death  or  such  other  punish- 
ment  as  a  court-martial  may  direct;  and  if  the  offense  be  committed  in  time 
of  peace,  he  shall  suffer  any  punishment,  except  death,  that  a  court-martial 
may  direct. 

"Abt.  87.  Personal  interest  in  sale  of  provisions. — Any  officer  command- 
ing in  any  garrison,  fort,  barracks,  camp,  or  other  place  where  troops  of  the 
United  States  may  he  serving  who,  for  his  private  advantage,  lays  any  duty 
or  imposition  upon  or  is  interested  in  the  sale  of  any  victuals  or  other  neces- 
of  lite  brought  into  such  garrison,  fort,  barracks,  camp,  or  other  place 
for  the  use  of  the  troops,  shall  be  dismissed  from  the  service  and  suffer  such 
other  punishment  as  a  court-martial  may  direct. 

"Abt.  88.  Intimidation  of  persons  bringing  provisions. — Any  person  subject 
to  military  law  who  abuses,  intimidates,  does  violence  to,  or  wrongfully  inter- 
feres with  any  person  bringing  provisions,  supplies,  or  other  necessaries  to  the 
camp,  garrison,  or  quarters  of  the  forces  of  the  United  states  shall  suffer  such 
punishment  as  a  court-martial  may  direct. 

"Art.  89.  Good  order  to  be  maintained  and  wrongs  redressed. — All  persons 
subject  to  military  law  are  to  behave  themselves  orderly  in  quarters,  garrison, 
camp,  and  on  the  march;  and  any  person  subject  to  military  law  who  com- 
mits any  waste  or  spoil,  or  willfully  destroys  any  property  whatsoever  (unless 
by  order  of  his  commanding  officer),  or  commits  any  kind  of  depreciation  or 
riot,  shall  In"  punished  as  a  court-martial  may  direct.  Any  commanding  officer 
who,  upon  complaint  made  to  him,  refuses  or  omits  to  see  reparation  made  to 
the  party  injured,  in  so  far  as  the  offender's  pay  shall  go  toward  such  repara- 
tion. :is  provided  for  in  article  one  hundred  and  five,  shall  be  dismissed  from  the 
Service,  or  Otherwise  punished,  as  a  court-martial  may  direct. 

"Abt.  90.  Provoking  speeches  or  gestures. — No  person  subject  to  military 
law  shall  use  any  reproachful  or  provoking  speeches  or  gestures  to  another; 
ami  any  person  subject  to  military  law  who  offends  against  the  provisions  of 
this  article  shall  be  punished  as  a  court-martial  may  direct. 

"ART.  91.  In  elino.  An\  person  subject  to  military  law  who  fights  or  pro- 
motes or  is  concerned  in  or  connives  at  fighting  a  duel,  or  who  having  knowl- 
edge  of  ,i  challenge  sent  or  about  to  be  sent  Calls  to  report  the  fact  promptly  to 
the  proper  authority  shall,  if  an  officer,  be  dismissed  from  the  service  or  suffer 
such  other  punishment  as  a  COUrt-martla]  may  direct;  and  if  any  other  person 
subject  to  military    law,  shall  Buffer  such  punishment  as  a  court-martial  may 

direct. 

"Abt.  '■»'-'.  Mt  rdeb  Rape.  Any  person  subject  to  military  law  who  commits 
murder  or  rap"  -hall  Buffer  death  or  imprisonment  for  life,  as  a  court-martial 


APPENDICES.  323 

may  direct;  but  no  person  shall  be  tried  by  court-martial  for  murder  or  rape 
committed  within  the  geographical  limits  of  the  States  of  the  Union  and  the 
District  of  Columbia  in  time  of  peace. 

[Note. — This  article  became  effective  on  August  29,  191G.] 

"Art.  93.  Various  crimes. — Any  person  subject  to  military  law  who  commits 
manslaughter,  mayhem,  arson,  burglary,  robbery,  larceny,  embezzlement,  per- 
jury, assault  with  intent  to  commit  any  felony,  or  assault  with  intent  to  do 
bodily  harm,  shall  be  punished  as  a  court-martial  may  direct. 

"Abt.  04.  Frauds  against  the  Government. — Any  person  subject  to  military 
law  who  makes  or  causes  to  be  made  any  claim  against  the  United  States  or 
any  officer  thereof,  knowing  such  claim  to  be  false  or  fraudulent ;  or 

"  Who  presents  or  causes  to  be  presented  to  any  person  in  the  civil  or 
military  service  thereof,  for  approval  or  payment,  any  claim  against  the  United 
States,  or  any  officer  thereof,  knowing  such  claim  to  be  false  or  fraudulent ;  or 

"  Mho  enters  into  any  agreement  or  conspiracy  to  defraud  the  United 
States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance  or  payment  of 
any  false  or  fraudulent  claim ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  against  any 
officer  thereof,  makes  or  uses,  or  procures,  or  advises  the  making  or  use  of, 
any  writing  or  other  paper  knowing  the  same  to  contain  any  false  or  fraudu- 
lent statements ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  any  officer 
thereof,  makes,  or  procures,  or  advises  the  making  of,  any  oath  to  any  fact  or 
to  any  writing  or  other  paper  knowing  such  oath  to  be  false ;  or 

"  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain,  the  approval, 
allowance,  or  payment  of  any  claim  against  the  United  States  or  any  officer 
thereof,  forges  or  counterfeits,  or  procures,  or  advises  the  forging  or  coun- 
terfeiting of  any  signature  upon  any  writing  or  other  paper,  or  uses,  or  pro- 
cures, or  advises  the  use  of  any  such  signature,  knowing  the  same  to  be  forged 
or  counterfeited  ;  or 

"  Who,  having  charge,  possession,  custody,  or  control  of  any  money  or  other 
property  of  the  United  States,  furnished  or  intended  for  the  military  service 
thereof,  knowingly  delivers,  or  causes  to  be  delivered,  to  any  person  having 
authority  to  receive  the  same,  any  amount  thereof  less  than  that  for  which  he 
receives  a  certificate  or  receipt ;  or 

"  Who,  being  authorized  to  make  or  deliver  any  paper  certifying  the  receipt 
of  any  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof,  makes  or  delivers  to  any  person  such  writing,  without  having 
full  knowledge  of  the  truth  of  the  statements  therein  contained  and  with  in- 
tent to  defraud  the  United  States ;  or 

"Who  steals,  embezzles,  knowingly  and  willfully  misappropriates,  applies  to 
his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells  or  disposes  of  any 
ordnance,  arms,  equipments,  ammunition,  clothing,  subsistence  stores,  money, 
or  other  property  of  the  United  States  furnished  or  intended  for  the  military 
service  thereof;  or 

"  Who  knowingly  purchases  or  receives  in  pledge  for  any  obligation  or  in- 
debtedness from  any  soldier,  officer,  or  other  person  who  is  a  part  of  or 
employed  in  said  forces  or  service,  any  ordnance,  arms,  equipment,  ammuni- 
tion, clothing,  BnbSlStence  stores,  or  oilier  property  Of  the  United  States,  such 
soldier,  officer,  or  other  person  not  having  lawful  right  to  sell  or  pledge  the 
same; 


MANUAL  FOB   OOUBTS  MARTIAL, 

■•shall,  on  conviction  thereof;  be  punished  by  fine  or  Imprisonment,  or  by 
Midi  other  punishment  as  a  court-martial  may  adjudge,  or  by  any  or  all  of 

S:ii,i  .  \ 1 1 . i  it"  any  person,  being  guilty  of  any  of  tiu-  offenses  aforesaid 

while  in  the  military  service  of  the  United  states,  receives  his  discharge  or  is 

dismissed  from  the  Bervice,  he  shall  continue  to  be  liable  to  be  arrested  and 

held  for  trial  and  sentence  by  a  court-martial  In  the  same  manner  and  to  the 

extent  as  if  he  had  ool  received  such  discharge  nor  been  dismissed. 

••.\  mini;  an  OFFIOTH  iman. — Any  officer  or 

;  who  is  convicted  of  conduct  unbecoming  an  officer  and  a  gentleman  shall 

be  dismissed  from  the  service. 

"ABT.  98.  Cimkm  UtTICXE. — Though  not  mentioned  in  these  articles,  all  dis- 
orders and  DeglectS  to  the  prejudice  of  good  order  and  military  discipline,  all 
conduct  of  a  nature  to  bring  discredit  upon  tbe  military  service,  and  all  crimes 
or  offenses  not  capital,  of  which  persons  subject  to  military  law  may  be  guilty, 
shall  be  taken  cognizance  of  by  a  general  or  special  or  summary  court-martial, 
ding  to  the  nature  and  degree  of  the  offense,  and  punished  at  the  dis- 
cretion of  such  court. 

"  IV.    COURTS    OF   INQUIRY. 

"Ai:r.  !i7.  When  and  bt  whom  ordered. — A  court  of  inquiry  to  examine  into 

the  nature  of  any  transaction  of  or  accusation  or  imputation  against  any  officer 

or  soldier  may  be  ordered  by  the  President  or  by  any  commanding  officer;  but  a 

court  of  Inquiry  shall  not  be  ordered  by  any  commanding  officer  except  upon 

[uesl  of  the  officer  or  soldier  whose  conduct  is  to  be  inquired  into. 

\!:r.  98.  Composition. — A  court  of  inquiry  shall  consist  of  three  or  more 

I  or   each  court  of  inquiry  the  authority   appointing  the  court  shall 

appoint  a  recorder. 

"Art.  99.  Challenges. — Members  of  a  court  of  Inquiry  may  be  challenged  by 
the  party  whose  conduct  is  to  be  inquired  into,  but  only  for  cause  stated  to  the 
court.  The  court  shall  determine  the  relevancy  and  validity  of  any  challenge, 
and  shall  not  receive  a  challenge  to  more  than  one  member  at  a  time.  The 
party  whose  conduct  is  being  inquired  into  shall  have  the  right  to  be  repre- 
sented before  tbe  court  by  counsel  of  his  own  selection,  if  such  counsel  be 
reasonably  available. 

"Akt.  100.  Oath  op  members  and  recorders. — The  recorder  of  a  court  of 
Inquiry  shall  administer  to  the  members  the  following  oath:  *  You,  A.  15..  do 
swear  (or  affirm)  that  you  will  well  and  truly  examine  and  inquire,  according 
to  the  evidence,  into  the  matter  now  before  you,  without  partiality,  favor, 
affection,  prejudice,  or  hope  of  reward.  So  help  you  God.'  After  which  the 
.ni  of  the  curt  shall  administer  to  the  recorder  the  following  oath: 
'  Ymi.  A.  I'...  do  swear  (or  affirm)  that  you  will,  according  to  your  best  abilities. 
accurately  and  Impartially  record  the  proceedings  of  the  court  and  the  evidence 
to  be  given  in  the  case  iii  bearing.    So  help  you  God.' 

"  In  case  of  affirmation  the  closing  sentence  of  adjuration  will  be  omitted. 

"A  .  A  courl   of  inquiry  and  the  recorder  thereof 

■hall   have   the  same  power   to  summon   and   examine  witnesses   as   is  given  to 
courts  -martial  and   the  judge  advocate  thereof.      Such   witnesses  shall   take  the 

oath  or  affirmation  that  is  taken  by  witnesses  before  courts-martial.    A  re- 
porter  or  an  Interpreter  for  a  court  of  inquiry  shall,  before  entering  upon  his 

•   ii ath  or  affirmation  required  of  a  reporter  or  an  interpreter  for 

a  court-martial.     The  party  whose  conduct   is  being  inquired  into  or  his  counsel, 
If  any.  shall   he  permitted   to  examine  am]   cross-examine  witnesses  so  as  fully 

to  Investigate  the  circumstances  in  question 


APPENDICES.  325 

"Art.  102.  Opinion  oh  mkkits  of  cask. — A  court  of  inquiry  shall  not  give  an 
opinion  on  the  merits  of  the  case  inquired  into  unless  specially  ordered  to  do  so. 

"Abt.  103.  Record  of  proceedings— How  authenticated.— Each  court  of  in- 
quiry shall  keep  a  record  of  its  proceedings,  which  shall  be  authenticated  by 
the  signature  of  the  president  and  the  recorder  thereof,  and  he  forwarded  to 
the  convening  authority.  In  case  the  record  can  not  be  authenticated  by  the 
recorder,  by  reason  of  his  death,  disability,  or  absence,  it  shall  be  signed  by 
the  president  and  by  one  other  member  of  the  court. 

"  v.  miscellaneous  provisions. 

"Art.  104.  Disciplinary  powers  of  commanding  officers. — Under  such  regu- 
lations as  the  President  may  prescribe,  and  which  he  may  from  time  to  time 
revoke,  alter,  or  add  to,  the  commanding  officer  of  any  detachment,  company, 
or  higher  command  may,  for  minor  offenses  not  denied  by  the  accused,  impose 
disciplinary  punishments  upon  persons  of  his  command  without  the  inter- 
vention of  a  court-martial,  unless  the  accused  demands  trial  by  court-martial. 
"The  disciplinary  punishments  authorized  by  this  article  may  include 
admonition,  reprimand,  withholding  of  privileges,  extra  fatigue,  and  restriction 
to  certain  specified  limits,  but  shall  not  include  forfeiture  of  pay  or  confine- 
ment under  guard.  A  person  punished  under  authority  of  this  article,  who 
deems  his  punishment  unjust  or  disproportionate  to  the  offense  may,  through 
the  proper  channel,  appeal  to  the  next  superior  authority,  but  may  in  the 
meantime  be  required  to  undergo  the  punishment  adjudged.  The  commanding 
officer  who  imposes  the  punishment,  his  successor  in  command,  and  superior 
authority  shall  have  power  to  mitigate  or  remit  any  unexecuted  portion  of 
the  punishment.  The  imposition  and  enforcement  of  disciplinary  punishment 
under  authority  of  this  article  for  any  act  or  omission  shall  not  be  a  bar  to 
trial  by  court-martial  for  a  crime  or  offense  growing  out  of  the  same  act  or 
omission;  but  the  fact  that  a  disciplinary  punishment  has  been  enforced  may 
be  shown  by  the  accused  upon  trial,  and  when  so  shown  shall  be  considered  in 
determining  the  measure  of  punishment  to  be  adjudged  in  the  event  of  a  finding 
of  guilty. 

"Abt.  105.  Injuries  to  person  of  property — Redress  of. — Whenever  com- 
plaint is  made  to  any  commanding  officer  that  damage  has  been  done  to  the 
property  of  any  person  or  that  his  property  has  been  wrongfully  taken  by  per- 
sons subject  to  military  law,  such  complaint  shall  be  investigated  by  a  board 
consisting  of  any  number  of  officers  from  one  to  three,  which  board  shall  be 
convened  by  the  commanding  officer  and  shall  have,  for  the  purpose  of  such 
investigation,  power  to  summon  witnesses  and  examine  them  upon  oath  or 
affirmation,  to  receive  depositions  or  other  documentary  evidence,  and  to  assess 
the  damages  sustained  against  the  responsible  parties.  The  assessment  of 
damages  made  by  such  board  shall  be  subject  to  the  approval  of  the  command- 
ing officer,  and  in  the  amount  approved  by  him  shall  he  stopped  against  the  pay 
of  the  offenders.  And  the  order  of  such  commanding  officer  directing  stoppages 
herein  authorized  shall  he  conclusive  on  any  disbursing  officer  for  the  payment 
by  him  to  the  injured  parties  of  the  stoppages  so  ordered. 

"  Where  the  offenders  can  not  be  ascertained,  but  the  organization  or  detach- 
ment to  which  they  belong  is  known,  stoppages  to  the  amount  of  damages 
inflicted  may  be  made  and  assessed  in  such  proportion  as  may  be  deemed  just 
upon  the  individual  members  thereof  who  are  shown  to  have  heen  present  with 
such  organization  or  detachment  at  the  time  the  damages  complained  of  were 
inflicted  as  determined  by  the  approved  findings  of  the  hoard. 


826  MANUAL   FOR  COURTS-MA  I:  I 1AL. 

•■Ai.r.  L06.  Abb  bi  i  nn.  w  i  icialb.     It  shall  be  lawful  for  any 

civil  officer  baring  authority  under  the  laws  of  the  United  States,  or  of  any 

trlct,   or  possession  of  th<-   United   states,   to  arrest  of- 

Minarily  t.»  aireel  B  deserter  from  the  military  service  of  the  United 

and    deliver    him    Into    the    Custody    Of    the    military    authorities    of    the 

United  st;. 
"Abt.  I117.  Sni  dtj  us  10  xt  \i<i:  oood  time  lost. — Every  soldier  who  in  an  exist- 
•  Bubsequenl  enlistment  deserts  the  Berviee  of  the  United  states  or  without 

'•    authority    absents    himself   from    his   organization,    station,    or   dutj 

than  one  day,  or  who  is  confined  for  more  than  one  day  under  sentence,  or 

while  awaiting  trial  and  disposition  of  his  ease,  if  the  trial  results  in  conviction, 

or  through  the  Intemperate  use  of  drugs  or  alcoholic  liquor,  or  through  dis- 

r   injury   the   result   of  his  own   misconduct,    rentiers   himself   unable  for 

m  .iv  than  one  day  to  perform  duty,  shall  be  liable  to  serve,  after  his  return 

Full-duty   Status,    tor   such  period   as   shall,   with  the  time   he  may   have 

.  prior  to  BUCh  desertion,  unauthorized  absence,  confinement,  or  inability 

form  duty,  amount  to  the  full  term  of  that  part  of  his  enlistment  period 

which  be  is  required  to  serve  with  his  organization  before  being  furloughed  to 

the  Army   re 

"Abt.  108.  Soldiers — Separation  from:  the  service. — No  enlisted  man,  law- 
fully inducted  into  the  military  service  of  the  United  States,  shall  be  discharged 

fr Bald  Berviee  without  a  certificate  of  discharge,  signed  by  a  field  officer  of 

i incut  or  other  organization  to  which  the  enlisted  man  belongs  or  by  the 
commanding  officer  when  no  such  field  officer  is  present;  and  no  enlisted  man 
shall  be  discharged  from  said  service  before  his  term  of  service  has  expired, 
except  by  order  of  the  President,  the  Secretary  of  War,  the  commanding  officer 
of  a  department,  or  by  sentence  of  a  general  court-martial. 
"Abt.  n»'.».  Oath  01   bn]  cstment.-  -A1  the  time  of  ids  enlistment  every  soldier 

shall  take  the  following  oath  or  affirmation:  'I,  ,  do  solemnly  swear  (or 

affirm)  that  I  will  bear  true  faith  and  allegiance  to  the  United  States  of 
America  ;  that  I  will  serve  them  honestly  and  faithfully  against  all  their  enemies 
whomsoever;  and  Unit  1  will  obey  the  orders  of  the  President  of  the  United 
and  the  orders  of  the  officers  appointed  over  me,  according  to  the  Rules 
and  Articles  of  War.'  This  oath  or  affirmation  may  be  taken  before  any  officer. 
"Abt.  11' i.  Certain  articles  to  be  bead  and  explained. — Articles  one,  two, 
and  twenty-nine,  fifty-four  to  ninety-six,  inclusive,  and  one  hundred  and  four 
to  one  hundred  and  nine,  inclusive,  shall  be  read  and  explained  to  every  soldier 
at  the  time  of  his  enlistment  or  muster  in,  or  within  six  days  thereafter,  and 
shall  be  read  and  explained  once  every  six  months  to  the  soldiers  of  every  gar- 
rison, regiment,  or  company  iii  the  service  of  the  United  States. 

"ABT.  111.  COFS  01  RECORD  oi  trial. — Every  person  tried  by  a  general  court- 
martial  shall,  on  demand  therefor,  made  by  himself  or  by  any  person  in  his 
behalf,  be  entitled  to  a  copy  of  the  record  of  the  trial. 

"ABT.     11-'.    i'i:i<   i-    "i     DECEASED    PERSONS  —  DISPOSITION    OF. —  111    case    of    the 

death  of  anj  person  subjeel  to  military  law,  the  commanding  officer  of  the 
place  of  command  will  permit  the  legal  representative  or  widow  of  the  de- 
ceased.  if  present,  to  take  possession  of  all  his  effects  then  in  camp  or  quarters, 
and  if  no  legal   representative  or  widow    be  present,   the  commanding  officer 

shall  direct  ,-i  BUmmary  court  to  secure  all  such  effects;  and  said  summary 
court  shall  have  authority  to  collect  and  receive  any  del, is  dm-  decedent's 
estate  by  local  debtors;  ami  as. soon  as  practicable  after  the  collection  of  such 
-  said  summary  court  shall  transmit  such  effects,  and  any  money  col- 
ic, led.  through  the  Quartermaster  Department,  at  Government  expense,  to  the 


APPENDICES.  327 

widow  or  legal  representative  of  the  deceased,  if  such  be  found  by  said 
court,  or  to  his  son,  daughter,  father,  mother,  brother,  or  sister,  in  the  order 
named,  If  such  be  found  by  said  court,  or  to  the  beneficiary  named  by  the 
deceased,  if  such  be  found  by  said  court,  and  such  court  shall  thereupon  make 
to  the  War  Department  a  full  report  of  its  transactions;  but  if  there  be  none 
of  the  persons  hereinabove  named,  or  such  persons  or  their  addresses  are  not 
kn.,\vn  to,  or  readily  ascertainable  by,  said  court,  and  the  court  shall  so  find, 
summary  court  shall  have  authority  to  convert  into  cash,  by  public 
or  private  sale,  not  earlier  than  30  days  after  the  death  of  the  deceased,  all 
effects  of  the  deceased,  except  sabers,  insignia,  decorations,  medals,  watches, 
trinkets,  manuscripts,  and  other  articles  valuable  chiefly  as  keepsakes;  and 
as  soon  as  practicable  after  converting  such  effects  into  cash  said  summary 
court  shall  deposit  with  the  proper  officer,  to  be  designated  in  regulations,  any 
cash  belonging  to  decedent's  estate,  and  shall  transmit  a  receipt  for  such  de- 
.  any  will  or  other  papers  of  value  belonging  to  the  deceased,  any  sabers, 
insignia,  decorations,  medals,  watches,  trinkets,  manuscripts,  and  other  articles 
valuable  chiefly  as  keepsakes,  together  with  an  inventory  of  the  effects  secured 
by  said  summary  court,  and  a  full  account  of  its  transactions  to  the  War  De- 
partment for  transmission  to  the  Auditor  for  the  War  Department  for  action 
as  authorized  by  law  in  the  settlement  of  the  accounts  of  deceased  officers  and 
enlisted  men  of  the  Army. 

"The  provisions  of  this  article  shall  be  applicable  to  inmates  of  the  United 
Statt'S  Soldiers'  Home  who  die  in  any  United  States  military  hospital  outside 
of  the  District  of  Columbia  where  sent  from  the  home  for  treatment."  (See 
Ch.  X,  Army  appropriation  act  of  July  9,  1918:  Public  No.  193,  65th  Cong.) 

"  Art.  113.  Inquests. — When  at  any  post,  fort,  camp,  or  other  place  garrisoned 
by  the  military  forces  of  the  United  States  and  under  the  exclusive  jurisdiction 
of  the  United  States,  any  person  shall  have  been  found  dead  under  circumstances 
which  appear  to  require  investigation,  the  commanding  officer  will  designate 
and  direct  a  summary  court-martial  to  investigate  the  circumstances  attending 
the  death;  and,  for  this  purpose,  such  summary  court-martial  shall  have  power 
to  summon  witnesses  and  examine  them  upon  oath  or  affirmation.  He  shall 
promptly  transmit  to  the  post  or  other  commander  a  report  of  his  investigation 
and  of  his  findings  as  to  the  cause  of  the  death. 

"A.KT.  114.  Authority,  to  administer  oaths. — Any  judge  advocate  or  acting 
judge  advocate,  the  president  of  a  general  or  special  court-martial,  any  sum- 
mary court-martial,  the  judge  advocate  or  any  assistant  judge  advocate  of  a 
general  or  special  court-martial,  the  president  or  the  recorder  of  a  court  of 
inquiry  or  of  a  military  hoard,  any  officer  designated  to  lake  a  deposition,  any 
officer  detailed  to  conduct  an  investigation,  and  the  adjutant  of  any  command 
shall  have  power  to  administer  oaths  for  the  purposes  Of  the  administration  of 
military  justice  and  for  other  purposes  of  military  administration;  and  in  for- 
eign places  where  the  Army  may  he  serving  shall  have  the  general  powers  of  a 
notary  public  or  of  a  consul  of  the  United  States  in  the  administration  of  oaths, 
the  execution  and  acknowledgment  of  legal  instruments,  the  attestation  of  docu- 
ments, and  all  other  forms  of  notarial  acts  to  be  executed  by  persons  Subject   to 

military  law. 

"Art.  115.  Appointment  ov  reporters  and  interpreters, — Under  such  regula- 
tions as  the  Secretary  of  War  may  from  time  to  time  prescribe,  the  president  of 
a  court-martial  or  military  commission,  or  a  court  of  inquiry  shall  have  power 
to  appoint  a  reporter,  who  shall  record  the  proceedings  of  and  testimony  taken 
before  such  court  or  commission  ami  may  set  down  the  same,  in  the  first  in- 
stance, in  shorthand.     Under  like  regulations  the  president  of  a  court-martial 


M  WTA1.    FOB    OOURTS-MABT]  \l.. 

or  military  commission,  or  courl  of  inquiry,  or  a  summary  court,  may  appoint  an 
Interpreter,  who  snail  Interprel  for  the  courl  or  commission. 

"Art.  in;.  Powers  01  AlSSistant  j*ddge  advo<  itbs.  An  asslstanl  Judge  advo- 
.  aeral  court-martia]  Bhall  be  competent  to  perform  any  duly  devolved 
by  law,  regulation,  or  the  custom  of  the  service  upon  the  judge  advocate  of  the 
■ 

■  \i.i.  117.  Removal  oi  crvn  butts.  -When  any  civil  <>r  criminal  prosecu- 
tion is  commenced  In  any  court  of  a  State  agalnsl  any  officer,  soldier,  or  other 
a  in  the  military  Bervlce  of  the  United  States  on  accounl  of  any  ad  done 
under  color  of  bis  office  or  Mams,  or  In  reaped  to  which  be  claims  any  right, 
title,  or  authority  under  any  law  of  the  United  States  respecting  the  military 
thereof,  or  under  the  law  of  war,  such  suit  or  prosecution  may  at  any 
time  before  the  trial  or  final  hearing  thereof  be  removed  for  trial  Into  the 
distrid  courl  of  the  United  States  in  the  district  where  the  same  is  pending  In 
the  manner  prescribed  in  section  thirty-three  of  the  Ad  entitled  'An  Ad  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary,'  approved  March 
three,  nineteen  hundred  and  eleven,  and  the  cause  .shall  thereupon  he  entered 
on    the  docket    of  said  district    court    and    shall    proceed    therein    as    if   the   cause 

hail  been  originally  commenced  in  said  district  court  and  the  same  proceedings 

had  been  taken  in  such  suit  or  prosecution  in  said  district  court  as  shall  have 
been  had  therein  in  sai.l  Slate  court  prior  to  its  removal,  and  said  district  court 
shall  have  full  power  to  hear  and  determine  said  cause. 
••  Art.  11^.  Ofj  icebs,  sepab  \  i  com  i  row  beevice. — No  officer  shall  be  discharged 

or  dismissed  from  the  service  except  by  order  of  the  President  or  by  sentence  of 

eral  court-martial :  and  in  time  of  peace  no  officer  shall  be  dismissed  except 
in  pursuance  of  the  sentence  of  a  court-martial  or  in  mitigation  thereof;  hut  the 
Presidenl  may  at  any  time  drop  from  the  rolls  of  the  Army  any  officer  who 
has  been  absent  from  duty  three  months  without  leave  or  who  has  been  absent 
iii  confinement  in  a  prison  or  penitentiary  for  three  months  after  final  conviction 
by  a  courl  of  competent  jurisdiction. 

"ART.    ll'.i.    RANB     AM)    PRECEDENCI      \\tov<;     ReOTTLABS,     MlllliA.     A1TO    Voi.rv- 
That    in  time  of  war  or  public  danger,  when  two  or  more  officers  of  the 
same  grade  are  mi  duty   in   the  same  field,  department,   or  command,   or  of  or- 
ganizations   thereof,    the    Presidenl    may    assign    the   command    of   the    forces   of 

such  held,  depart at,  or  command,  or  of  any  organization  thereof,  without 

;  t.i  seniority  of  rank  in  the  same  grade.  In  the  absence  of  Such  assign- 
ment by  the  President,  officers  of  the  same  grade  shall  rank  and  have  precedence 
in  the  following  order,  without  regard  to  dale  of  rank  or  commission  as  be- 
tween officers  of  different  classes,  namely:  First,  officers  of  the  Regular  Army 
Mid  officers  of  the  .Marine  Corps  detached  for  service  with  the  Army  by  order  of 
the  Preslden  Becond,  officers  of  forces  drafted  or  called  into  the  service  of  the 
United  si.ncv;  and,  third,  officers  of  the  volunteer  forces:  Provided,  That 
officers  of  the  Regular  Army  holding  commissions  in  forces  drafted  or  called 
into  the  service  of  the  United  Stales  or  In  the  volunteer  forces  shall  rank  and 
have  precedence  under  said  Commissions  as  if  they  were  commissions  in  the 
lar  Army:  the  rank  ot  officers  of  the  Regular  Army  under  commissions  in 
the  National  Guard  as  such  shall   not,   for  the  purposes  of  this  article,  he  held 

to  antedate  the  acceptance  of  such  officers  into  the  servh f  the  United  states 

under  said  commissions. 

••    \  •  WHEN  DIFFERENT  00BP8  OR  COMMANDS  HAPPEN  TO  JOTN. 

When  different  corps  or  commands  of  the  military  forces  of  1  he  United  States 
happen  to  join  or  do  duty  together  the  Officer  hlghesl   in  rank  of  the  line  of  the 

Regular  Army,   Marine  Corps,   forces   drafted   or  called    into  the   service  of  the 

United  States,  or  Volunteers,  there  on  duty,  shall,  Bubjed  to  the  provisions  of 


APPENDICES.  329 

the  last  preceding  article,  command  the  whole  and  give  orders  for  what  is 
needful  in  the  service,  unless  otherwise  directed  by  the  President. 

■•  Akt.  121.  Complaints  ok  wbongs. — Any  officer  or  soldier  who  believes  himself 
wronged  by  his  commanding  officer,  and,  upon  duo  application  to  such  com- 
mander,  is  refused  redress,  may  complain  to  the  general  commanding  in  the 
locality  whole  the  officer  against  whom  the  complainl  is  made  is  stationed.  The 
general  shall  examine  inio  said  complaint  and  take  proper  measures  for  redress- 
ing the  wrong  complained  of;  and  he  shall,  as  soon  as  possible,  transmit  to  the 
Department  of  War  a  true  statement  of  such  complaint,  with  the  proceedings 
had  thereon." 

Sec.  4.  The  provisions  of  section  three  of  this  Act  shall  take  effect  and  he  in 
force  on  and  after  the  first  day  of  March,  nineteen  hundred  and  seventeen: 
Provided,,  That  articles  four,  thirteen,  fourteen,  fifteen,  twenty-nine,  forty- 
seven,  forty-nine,  and  ninety-two  shall  take  effect  immediately  upon  the  ap- 
proval of  this  Act. 

Se<  .  5.  That  all  offenses  committed  and  all  penalties,  forfeitures,  fines,  or  lia- 
bilities Incurred  prior  to  the  taking  effect  of  this  Act,  under  any  law  embraced 
in  or  modified,  changed,  or  repealed  by  this  Act.  may  he  prosecuted,  punished, 
and  enforced  in  the  same  manner  and  with  the  same  effect  as  if  this  Act  had 
not  been  passed. 

Sec  6.  All  laws  and  parts  of  laws  in  so  far  as  they  are  inconsistent  with  this 
Act  are  hereby  repealed. 

Act  of  August  29,  1916  (39  Stat.,  650-670). 

C.  M.  C.  M.,  No.  //. 


APPENDIX  2. 

SYSTEM   OF   COURTS-MARTIAL   FOR   NATIONAL   GUARD 
NOT  IN  THE  SERVICE  OF  THE  UNITED  STATES. 

Sec.  102.  Except  in  organizations  in  the  service  of  the  United  States,  courts- 
martial  in  the  National  Guard  shall  be  of  three  kinds,  namely,  general  courts- 
martial,  special  courts-martial,  and  summary  courts-martial.  They  shall  be 
constituted  like,  and  have  cognizance  of  the  same  subjects,  and  possess  like 
powers,  except  as  to  punishments,  as  similar  courts  provided  for  by  the  laws 
and  regulations  governing  the  Army  of  the  United  States,  and  the  proceedings 
of  courts-martial  of  the  National  Guard  shall  follow  the*  forms  and  modes  of 
procedure  prescribed  for  said  similar  courts. 

Sec.  103.  General  courts-martial  of  the  National  Guard  not  in  the  service  of 
the  United  States  may  be  convened  by  orders  of  the  President,  or  of  the  gov- 
ernors of  the  respective  States  and  Territories,  or  by  the  commanding  general 
of  the  National  Guard  of  the  District  of  Columbia,  and  such  courts  shall  have 
the  power  to  impose  fines  not  exceeding  $200 ;  to  sentence  to  forfeiture  of  pay 
and  allowances;  to  a  reprimand;  to  dismissal  or  dishonorable  discharge  from 
the  service;  to  reduction  of  noncommissioned  officers  to  the  ranks;  or  any 
two  or  more  of  such  punishments  may  be  combined  in  the  sentences  imposed 
by  such  courts. 

Sec  104.  In  the  National  Guard,  not  in  the  service  of  the  United  States,  the 
commanding  officer  of  each  garrison,  fort,  post,  camp,  or  other  place,  brigade, 
regiment,  detached  battalion,. or  other  detached  command,  may  appoint  special 
courts-martial  for  his  command;  but  such  special  courts-martial  may  in  any 
case  be  appointed  by  superior  authority  when  by  the  latter  deemed  desirable. 
Special  courts-martial  shall  have  power  to  try  any  person  subject  to  military 
law,  except  a  commissioned  officer,  for  any  crime  or  offense  made  punishable  by 
the  military  laws  of  the  United  States,  and  such  special  courts-martial  shall 
have  the  same  powers  of  punishment  as  do  general  courts-martial,  except  that 
4nes  imposed  by  such  courts  shall  not  exceed  $100. 

Sec  105.  In  the  National  Guard,  not  in  the  service  of  the  United  States,  the 
commanding  officer  of  each  garrison,  ■  fort,  post,  or  other  place,  regiment  or 
corps,  detached  battalion,  company,  or  other  detachment  of  the  National  Guard 
may  appoint  for  such  place  or  command  a  summary  court  to  consist  of  one 
officer,  who  shall  have  power  to  administer  oaths  and  to  try  the  enlisted  men 
of  such  place  or  command  for  breaches  of  discipline  and  violations  of  laws  gov- 
erning such  organizations;  and  said  court,  when  satisfied  of  the  guilt  of  such 
BOldier,  may  impose  fines  not  exceeding  $25  for  any  single  offense ;  may  sentence 
noncommissioned  officers  to  reduction  to  the  ranks;  may  sentence  to  forfeiture 
of  pay  and  allowances.  The  proceedings  of  such  court  shall  be  informal,  and 
the  minutes  thereof  shall  be  the  same  as  prescribed  for  summary  courts  of  the 
Army  of  the  United  Si: 

Sec  100.  All  courts-martial  of  the  National  Guard,  aol  In  the  service  of  the 
United  States,  Including  summary  courts,  shall  have  power  to  sentence  to  con- 

331 


332  MANUAL   FOR   COURTS- MARTIAL. 

i  ilea  <>r  Ones  authorised  to  be  Imposed:  Provided,  That  such  sen- 

infinemenl  siiail  doI  exceed  one  day  for  each  dollar  of  fine  authorized. 
entence  of  dismissal  from  the  Bervice  or  dishonorable  discharge, 
Imposed  by  b  National  Guard  court-martial,  not  in  the  service  of  the  United 
States,  Bhi  tod  untU  approved  l>y  the  governor  of  the  State  or  Terri- 

tory concerned,  or  by  the  commanding  general  of  the  National  Guard  of  the 
D  Columbia. 

108.  in  the  National  Guard,  not  in  the  service  of  the  United  States, 
i    .  courts-martial  and  summary  court  officers  shall  have  power  to 

warrants  to  arrest  accused  persons  and  to  bring  them  before  the  court 
fur  trial  whenever  such  persons  shall  have  disobeyed  an  order  in  writing  from 
onvening  authority  to  appear  before  such  court,  a  copy  of  the  charge  or 
charges  having  been  delivered  to  the  accused  with  such  order,  and  to  issue 
subpoenas  and  subpoenas  duces  tecum  and  to  enforce  by  attachment  attendance 
of  witnesses  and  the  production  of  books  and  papers,  and  to  sentence  for  a 
refusal  to  be  sworn  or  to  answer  as  provided  in  actions  before  civil  courts. 
All  pro©  sentences  of  said  courts  shall  be  executed  by  such  civil 

may  be  prescribed  by  the  laws  of  the  several  States  and  Terri- 
tories, and  in  any  State  where  no  provision  shall  have  been  made  for  such 
action,  and  in  the  Territories  and  the  District  of  Columbia,  such  processes  and 
sentences  Bhall  be  executed  by  a  United  States  marshal  or  his  duly  appointed 
deputy,  and  it  shall  he  the  duty  of  any  United  States  marshal  to  execute  all 
such  processes  and  sentences  and  make  return  thereof  to  the  officer  issuing  or 
og  the  same.     (Act  of  June  3,  1916,  39  Stat.,  208,  209.) 


APPENDIX  2a. 

FORM   OF    ORDER   APPOINTING   A    GENERAL    COURT-MARTIAL. 

Headquarters Department  (Division)  , 

,  ,  19—. 

Special  <  >rders,  I 
No.  — .         f 

A  general  court-martial  is  appointed  to  meet  at , ,  at , 

on  .  19 — .  or  as  soon  thereafter  as  practicable,  for  the  trial  of  such  per- 
sons as  may  be  properly  brought  before  it. 

DETAIL    FOB   THE   COVRT. 

Col.  ,  5th  Cavalry. 

Lieut.  Col.  ,  1st  Infantry. 

Lieut.  Col.  .  3d  Artillery. 

Maj.  ,  4th  Infantry. 

Maj.  .  3d  Artillery. 

Capt.  ,  4th  Infantry. 

Capt.  .  5th  Cavalry. 

Capt  .   1st   Infantry. 

Capt.  ,  3d  Artillery. 

Capt.  ,  5th  Cavalry,  judge  advocate. 

First  Lieut. ,  3d  Artillery,  assistant  judge  advocate. 

The  president  is  authorized  to  employ  a  reporter. 

(If  less  than  13  members  are  detailed  on  a  general  court-martial  the  order 
will  state:) 

A  greater  number  of  officers  can  not  be  convened  without  manifest  injury  to 
the  service. 

(In  case  travel  is  necessary,  the  following  sentence  will  be  added:) 

The  travel  directed  in  compliance  with  this  order  is  necessary  in  the  military 
service. 

By  command  of  Maj.  Gen.  : 


Department   (Division)   Adjutant. 

(C.  M.  C.  M.,  No.  J,.) 

332a 


APPENDIX  2b. 

FORM  OF  ORDER  APPOINTING  A  SPECIAL  COURT-MARTIAL 

Headquarters 


.  .  19—. 

Special  <  >rders,  1 
No.—.  f 

A  special  court-martial   is  appointed  to  meel   at  .  —  a1   

,  on  .  19—,  or  as  soon  thereafter  as  practicable,  for  the  trial  of 


such  persons  as  may  be  properly  brought  before  it. 

DETAIL   FOR   THE    COURT. 

Ma.i.   ,   1st   Infantry. 

Capt.  — ,  3d  Cavalry. 

Capt  ,  4th  Artillery. 

First   Lieut.  .  3d  Cavalry. 

First  Lieut.  .  1st  Infantry. 

,  4th  Artillery,  judge  advocate. 

(In  case  the  appointing  authority  desires  that  the  testimony  be  reduced  to 
writing,  the  following  sentence  will  be  added:) 

The  testimony  will  be  reduced  to  writing,  and  the  president  is  authorized  to 
employ  a  reporter. 

By  order  of  Col.  : 


Idjutant. 
(C.  M.  C.  M.,  No.  4.)  mB 


APPENDIX  3. 

I  1  KO.VI.  | 

Charge  sheet. 

Number 


<  In   Bummarj    courl    record.) 
,    19—. 


(Surname.)  (Christian  name.)  (Number. )      (Grade.) 


(Company  and  regiment,  or  corps,   or  department.) 

Date  of  current  enlistment,  ,  10—:  age  at  enlistment, 

years months. 

Rate  of  pay.  $ .     Class  A  allotment,  $ per  month.     Class   B 

allotment,  $ per  month. 

Allotment  for  insurance  premium,  $ per  month.     Liberty  loan  allot- 
ments, $ per  month. 

Prior  service,  — — • 

(Give  dates,   with  character  given  on  each  discharge.) 


Number  of  previous  convictions,  . 

Date  of  arrest,  ,  19 — ,  or  confinement,  ,  19- 

Place  where  accused  is  now  in  arrest  or  confinement. 

Witnesses  ; 

Chasqe:   Violation  of  the  Article  of  War. 

Specification: 

Form  No.  594,  A.  <:.  O. 


|  HACK.] 


Pleas  

Findings 
Sentence 
Findings 


in  arresl  ( or  confinement  ), ;  maximum  punishment, 

Remarks : 

Entered  on  pay  card"  (forfeiture  only)    and  on  repori    of  changes 
structions),  . 

(Initials   of   personnel    adjutant.) 

Entered  on  service  record  in  cases  of  conviction  (see  Instructions), . 

i  Initials  of  company  or  detachment   commander.) 

Note.— Except  as  noted  in  the  Instructions,  the  above  spares  are  Intended 
only  for  use  for  record  purposes  at  the  headquarters  of  the  officer  appointing 
the  special  or  general  court-martial,  ami  it  is  nol  Intended  that  they  shall  lie 
filled   in  by  summary  courts,  trial  judge  advocates,  etc. 

53915°_18 23  333 


;;;;  1  MANUAL  FOB    C0TJBT8-MABTIAL. 

l  \si  l;i  '   riONS. 

fore  preparing  charges  on  this  form  the  Instructions  given  In  Appendix  3, 
Manual  for  Courts-Martial,  will  be  carefullj  considered". 

The  Initials  of  the  personnel  adjutant  Indicating  entry  on  pay  card  when  for- 
feiture is  awarded  and  on   report   of  changes  In  case  of  conviction,  and  the 

Initials  of  ti' mpanj   or  detachment  commander  Indicating  entry  on  Bervice 

conviction,  will  be  placed  on  the  original  charge  sheet  of  sum- 
mary courts-martial  completed  as  the  record  of  trial.     (See  par.  3  (a),  [nstruc- 
3    M.  C.  M.) 


!  RU<    1  KINS. 

The  following  Instructions  will  be  carefully  considered  In  connection  with 
the  preparation  of  charges  to  be  tried  before  courts-martial: 

1.  Submission  of  charges.— All  charges   for  trial   by   cowt-martial   will   be 

red  in  triplicate,  using  the  prescribed  charge  sheet  as  a  first  sheet  and 
additional  sheets  of  ordinary  paper  as  ate  required.  They  will  be 
apanied — 

I,.- I  Except  when  trial  is  to  he  had  by  summary  court,  by  a  brief  statement 
of  the  substance  of  all  material  testimony  expected  from  each  material  witness, 
both  those  for  the  prosecution  ami  those  for  the  defense,  together  with  all 
available  and  necessary  information  ;is  to  any  other  actual  or  probable  testi- 
mony or  evidence  in  the  case;  and 

(6)  in  the  case  ..f  a  soldier,  by  properly  authenticated  evidence  of  convic- 
tions, if  any.  of  an  offense  or  offenses  committed  by  him  during  his  current 
enlistment  and  within  one  year  next  preceding  the  date  of  the  alleged  commis- 
sion by  him  of  any  offenses  set   forth  in  the  charges. 

They  will  he  forwarded  by  the  officer  preferring  them  to  the  officer  Imme- 
diatelj  exercising  summary  court-martial  jurisdiction  over  the  command  to 
which  the  accused  belongs  and  will  by  him  and  by  each  superior  commander 
int..  whose  hands  they  may  come  either  he  referred  to  a  court-martial  within 
his  jurisdiction  for  trial,  forwarded  to  the  next  superior  authority  exercising 
court-martial  jurisdiction  over  the  command  to  which  the  accused  belongs  or 
pertains,  or  otherwise  disposed  of  as  circumstances  may  appear  to  require. 
(M.C.  M..  par.  75.) 

2.  Investigation  of  charges.— Tf  the  officer  immediately  exercising  summary 
court-martial  jurisdiction  over  the  command  to  which  the  accused  belongs  or 
pertains  decides  to  forward  the  charges  to  superior  authority,  he  will,  before  so 
doing,  either  carefully  Investigate  them  himself  or  will  cause  an  officer  other 
than  the  officer  preferring  the  charges  to  Investigate  them  carefully  ami  to 
report  to  him.  orally  or  otherwise,  the  result  of  such  investigation.  The  officer 
Investigating  the  charges  will  afford  to  the  accused  an  opportunity  to  make 
any  statement,  offer  any  evidence,  or  present  any  matter  in  extenuation  that 
lie  may  desire  to  have  considered  in  connection  with  the  accusation  against 
him.  If  the  aCCU8ed  desires  to  submit  nothing,  the  indorsement  will  so  stale. 
Iii  his  indorsement  forwarding  the  charges  to  superior  authority  the  command- 
ing Officer  will   include  : 

i </ 1  The  mii >f  the  officer  who  Investigated  the  charges; 

he   opinion  of   both   such   officer   and    himself   as   to   whether   the   several 
•    he    sustained  ; 
I  be   substance  of  such    material    statement,    if  any,   as  the   accused    may 
have    voluntarily    made    in    connection    with    the    ease    during    the    investigation 
thereof; 


APPENDICES.  334A 

(d)  A  summary  of  the  extenuating  circumstances,  if  any,  connected  with  the 
case 

■S.  Disposition  of  copies  of  charges. —  (a  >  When  trial  is  to  be  had  by  summary 
court  the  original  charge  sheet  will  be  completed  as  the  record  of  trial.  This 
record  will  be  delivered  to  the  personnel  adjutant  who  will,  after  noting  neces- 
sary data  on  the  pay  card  of  the  accused,  initial  it  in  the  plate  provided  and 
transmit  same  to  the  company  or  other  commander  who  will,  after  making  the 
3sary  entries  on  the  service  record,  initial  and  return  it  to  the  commanding 
officer  who  appointed  the  court,  in*  whose  office  it  will  be  carefully  preserved 
for  a  period  of  two  years,  at  the  end  of  which  time  it  may  be  destroyed.  A 
copy  thereof  will  be  retained  in  the  office  of  the  commanding  officer  who  ap- 
pointed the  court  until  the  original  record  has  been  returned  for  file,  when  this 
copy  may  be  destroyed.  The  other  copy  will,  with  the  least  practicable  delay, 
be  transmitted  as  the  required  report  of  trial  to  the  officer  exercising  general 
court-martial  jurisdiction  over  the  command,  there  to  be  filed  in  the  office  of 
the  judge  advocate  until  the  statistical  information  required  for  the  annual 
report  of  the  judge  advocate  has  been  secured,  when- it  may  be  destroyed. 

(b)  When  trial  is  to  he  had  by  special  or  general  court-martial  the  charges 
and  one  copy  thereof  will  be  referred  to  the  trial  judge  advocate,  the  copy  to  be 
furnished  by  him  to  the  accused  or  his  counsel,  and  the  other  copy  will  be  used 
for  record  purposes  in  the  office  of  the  officer  appointing  the  trial  court,  the  top 
fold  of  this  copy  of  the  charge  sheet,  in  case  of  trial  by  general  court-martial, 
being  detached  at  the  proper  time  and  forwarded  with  the  record  of  trial  to 
the  Judge  Advocate  of  the  Army.     (M.  C.  M.,  par.  79.) 

4.  Disposition  of  evidence  of  previous  convictions. —  (a)  The  evidence  of  a 
previous  conviction  referred  to  a  summary  court  or  to  the  judge  advocate  of  a 
special  court  will,  after  trial,  be  returned  by  him  to  the  appointing  authority 
and  will,  after  action  by  the  latter  on  the  case,  be  returned  to  the  command 
to  which  it  pertains. 

(6)  The  evidence  of  a  previous  conviction  referred  to  the  judge  advocate  of 
a  general  court-martial  will,  after  trial,  be  returned  by  him  direct  to  the  regi- 
ment or  other  command  to  which  it  pertains,  and  a  certified  copy  thereof  will 
he  attached  to  the  record  of  trial.  (See  M.  C.  M.,  par.  306.)  (O.  M.  ('.  M., 
No.  :,.) 


APPENDIX  4. 
FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

INSTRUCTIONS. 

The  forms  for  charges  and  specifications  set  forth  below  constitute  a  general 

guulo  for  use  in  the  drafting  of  charges  and  specifications  under  the  several 

es  of  war.  not  only  for  offenses  specifically  provided  for  in  the  forms  but 

also  for  like  offenses  not  specifically  mentioned  therein.     In  preparing  charges 

the  following  general  rules  should  be  observed : 

(a)  When  there  is  more  than  one  charge  the  charges  will  be  numbered,  using 
the  Roman  numerals,  viz,  I,  II,  etc. 

(b)  When  there  is  more  than  one  specification  under  a  charge  the  specifica- 
tions under  that  charge  will  be  numbered,  using  the  Arabic  numerals,  viz, 
1,  2,  etc. 

(c)  The  form  provided  for  the  charge  will  not  in  any  case  be  abbreviated, 
added  to,  or  deviated  from. 

(d)  The  several  forms  provided  for  specifications  will  be  added  to  or  devi- 
ated from  when  circumstances  require  such  addition  or  deviation,  and  in  charg- 
ing minor  offenses  with  a  view  to  trial  by  summary  court  they  may  in  proper 

I  >e  abbreviated. 

(c)  The  words  inclosed  in  parentheses  or  brackets,  or  both,  in  the  forms  for 
specifications  may  or  may  not  be  used,  as  circumstances  require. 

(/)  The  blanks  inclosed  in  parentheses  in  the  forms  for  specifications  indi- 
cate that  a  proper  substitute  may  be  used. 

{g)  The  name  of  the  accused  as  entered  in  the  specification  should,  except 
in  a  case  in  which  the  jurisdiction  of  the  court  over  the  person  is  not  dependent 
upon  his  being  a  person  subject  to  military  law  (e.  g.  see  A.  W.,  81  and  82),  be 
accompanied  by  such  descriptive  language  as  will  show  that  he  is  a  person 
subject:  to  military  law  and  therefore  subject  to  the  jurisdiction  of  the  court. 

as  "  Pvt.  John  Doe,  Company , Infantry  " ;  "  Pvt.  John  Doe, 

United   States  Marine  Corps,  detached  for  service  with  the  Army,  by 


order  of  the  President";  "John  Doe,  a  retainer  to  the  camp";  "John  Doe,  a 
::  accompanying  the  Army  of  the  United  States  without  the  territorial 
jurisdiction  of  the  United  States  "  ;  "  John  Doe,  a  person  serving  with  the  Army 
of  the  United  States  in  the  field  "  ;  "  John  Doe.  a  general  prisoner  "  ;  "  John  Doe, 
a  person  under  a  sentence  adjudged  by  a  court-martial."' 

i.  i  The  place  and  date  of  the  commission  of  the  alleged  offense  will  ordi- 
narily be  <:aie.l  in  the  body  of  the  specification  and  not  in  a  separate  line  at  the 
end  thi 

(0  The  words  "officer  preferring  charge,"  or  words  of  similar  import,  will 
not  be  used  in  connection  with  the  signature  of  the  officer  who  subscribes  the 
charges. 

SPECIMEN  CHARGES. 

[To  be  placed  on  charge  sheet.  Appendix  3.] 

CHARGE  I:  Violation  of  the  54th  Article  of  War. 

Specification:  In  that  Pvt.  Richard  Roe.  Company  A,  Second  Infantry,  alias* 
Pvt  John  Doe,  Company  F.  Twenty-ninth  infantry,  did,  without  a  discharge 
from  said  Company  A,  Second  Infantry,  procure  himself  to  be  enlisted  in  the 

335 


MANUAL    i  OB   0OUBT8  MARTIAL. 

military  service  of  the  United  States  al  Fori  Jay,  N.  v..  on  the  24th  day  of 
July.  v.»i7.  under  the  nam.-  of  John  Doe,  by  willfully  concealing  from  Capt. 
Willi)  Medical  Corps,  a  recruiting  officer,  the  fad  of  his  prior  enlist- 

ment in  said  Company  A.  Second  Infantry,  and  has  al  Fdrt  -lay.  N.  v..  since 
aald  date,  received  allowances  under  said  enlistment 

CH  \K<;K  II:  Violation  of  the  58th  Article  of  War. 

to  thai  Pvt  Richard  Roe,  Company  A.  Second  Infantry,  alias 

Company  F,  Twenty-ninth  Infantry,  did,  al  Fori  Jay,  N.  v..  on 

it  the  6th  day  of  March,  1917,  desert  the  Bervice  of  the  United  states,  and 

did  remain  absenl  In  desertion  until  he  was  apprehended  al  Fori  Jay.  N.  Y.,  on 

or  about  July  24,  1917. 

CHARGE  III:  Violation  of  the  96th  Article  of  War. 

dfication  I:  In  thai  Pvt.  Richard  Roe,  Company  A.  Second  Infantry,  alias 
I'M.  jonn  D        ■  Twenty-ninth  Infantry,  did,  at  Fort  Jay.  N.  V..  on 

Or  al..>ut  Mar.h  6,  1917,  Strike  iii  the  face  with  his  list  Pvt  John  \Y.  1 'avis 
Third  Company,  Fort  Hamilton,  then  a  sentinel  In  the  execution  of  his  duty. 

Specification  2:  In  that  Pvt  Richard  Roe,  Company  A.  Second  Infantry,  alias 

Pvt  J  I  ompany  F,  Twenty-ninth  Infantry,  having  at   Fort  Jay.  N.  Y., 

on  or  about  the  6th  day  of  March,  1917,  received  a  lawful  order  to  halt  from 

Third  Company,    Fort    Hamilton,   then   a  sentinel   in  the 

execution  of  his  duty,  did  willfully  disobey  the  same. 

John  Jones, 

Captain,  C.   t.  0. 
FORMS. 

[See  instructions  on  p.  335.] 

CHARGE:  Violation  of  the  54th  Article  of  War. 

1.  Specification:  In  that  Pvt. .  Company  ,  Infantry,  alio*, 

Company  ,  Infantry,  did.   without  a  discharge  from 

:        utry,  procure  himself  to  be  enlisted  in  the  military  service  of 

United  States,  al .  on  the day  of ,  19—,  under  the  name 

-,    i  by   willfully  and   falsely  representing  to — .  a  recruiting  office] 

that  he  ha.i  never  been  enlisted  in  the  service  of  the  United  states  and)  by 

willfully  concealing  from  i ,  a)    (said)   recruiting  officer  (,)  the  fact  of 

his   prior   enlistment    in    said   Infantry:    and    has.   at    and   since 

said    date,    received    (pay)    (allowances)     (pay    and    allowances)    under    said 

2.  Specification:  In  that did  procure  himself  to  be  enlisted  in  the  mill 

tary  service  of  the  United  states,  at ,  on  the day  of ,  19--, 

(by  willfully  and  falsely  representing  to ,  a  recruiting  officer,  that  he  had 

been  discharged  from  the  service  of  the  United  states  and)  by  willfully 

Baling  from  t ,  a)   (said)  recruiting  officer  the  fact  that  (.  under  thi 

name   i  ,)    he   had   been   discharged    [(dishonorably   from   ,   on 

.    pursuant    to   sentence   of   court-martial)     (from   ,   on .    bj 

:,  of  I  !  [convicted  of  a  felony,  to  wit, 1  [ ] ;  and  has.  at 

and  since  Bald  enlistment  received  (pay)   (allowances)   (pay  and  allow- 
thereunder. 
::.  Specification:  In  thai   -  did  procure  himself  to  be  enlisted  in  the 

military   service  of  the  United   Slater,  at  — ,  on   the day   of , 

[by  willfully  and  falsely  representing  to ,  a  recruiting  officer,  that 

he  had   never  been   Imprisoned   in  any    (jail)    (reformatory)    (penitentiary) 

audi  by  willfully  concealing  from  (— -  Id)   recruiting  officer  (.)  the 

fact  that  (,  under  the  name  of  . )  he  had  been  imprisoned  in  a  (  reform- 
at. »ry)    (jail)    (penitentiary)   under  a  sentence  of  a  civil  court;  and  has,  at 


APPENDICES.  337 

and  since  said  enlistment,  received  (pay)    (allowances)    (pay  and  allow- 
ances) thereunder. 

4.  Specification:  In  that  did  procure  himself  to  be  enlisted   in  the 

military  service  of  the  United  States,  at  ,  on  the day  of  , 

19 — ,  (by  willfully  and  falsely  representing  to ,  a  recruiting  officer,  that 

he  was  years  of  age  and)    by   willfully  concealing  from    ( ,   a) 

(said)    recruiting  officer    (,)    the  fact  that  he  was  then    (under  the  age  of 

eighteen  years)    (a  married  man)    ( )  ;  and  has,  at and  since  said 

enlistment,  received   (pay)    (allowances)    (pay  and  allowances)    thereunder. 

CHARGE:  Violation  of  the  55th  Article  of  War. 

5.  Specification:  In  that did  at ,  on ,  unlawfully  (enlist) 

(muster)    into   the   military   service   of   the   United    States   one  ,   who, 

as  he,  the  said  ,  then  well  knew,  was   (a)    (an)    (insane)    (intoxicated) 

( )  person   (who  had  been  convicted  of  a  felony)    (under  the  age  of  16 

years)    ( ). 

CHARGE:  Violation  of  the  56th  Article  of  War. 

6.  Specification:  In  that ■  did,  at  ,  on  the  day  of  , 

19 — ,  (sign)    (allow to  sign)    (direct to  sign)  the  muster  roll  of 

,  for  the  period  to  ,  19 — ,  he,  the  said  ,  then  well 

knowing  that  the  said  muster  roll  contained  the  name  of as  soldier  and 

a  member  of  said  company  and  as  present  for  duty  therewith,  and  that  the 

said was  (not  a  soldier)   (not  a  member  of  said  company)    (not  present 

for  duty)  but  (a  civilian)   (a  member  of  company )   (wholly  absent  from 

military  duty). 

7.  Specification:  In  that did,  at ,  on  the  day  of  , 

19 — ,    (sign)    (allow  to  sign)    (direct  to  sign)    the  muster  roll 

of ,  for  the  period  to  ,  19 — ,  he,  the  said  ,  then  well 

knowing  that  said  muster  roll  contained  a  statement  that  ,  a  private  of 

said  ,  was  present  and  mustered,  and  that  said  statement  was  false  in 

that  said was  then  absent  without  leave. 

8.  Specification:  In  that did,  at ,  on  the  day  of  , 

19 — ,  falsely  muster  as   (present)    ( )   ,  when  he  well  knew  that 

said  was  not  (present)    ( ),  but  (absent  with  leave)    ( ). 

9.  Specification:  In  that did,  at  ,  on  the  day  of  , 

19 — ,  falsely  muster  as  a  of  Company  ,  th  Infantry,  one 

,  who,  as  he,  the  said ,  then  well  knew,  was  not  a  soldier,  but   (a 

civilian)    ( ). 

10.  Specification:  In  that did,  at ,  on  the day  of , 

19 — ,  sign  the  muster  roll  of ,  for  the  period to ,  19 — ,  know- 
ing at  the  time  that  said  muster  roll  contained  a  statement  that  was 

(present)    ( ),  and  knowing  at  the  time  that  said  was  not   (pres- 
ent)   ( ),  but  (absent  with  leave)    ( ). 

11.  Specification:  In  that  did,  at ,  on  or  about  the  day 

of ,  19 — ,  wrongfully  take  from  (the  sum  of  $ )    ( ), 

as  a  consideration  to  him  ,  for  knowingly  permitting  the  muster-in  roll 

of on  the  mustering  in  of  that to  falsely  show  as   (mus- 
tered in)    ( ),  ,  who,  as  he,  the  said  ,  (ben  well  knew,  was 

(were)    not    (mustered  in)    ( ). 

12.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19—,  wrongfully  take  from  the  sum  of  $ ,  as  a  consid- 
eration to  him  ,  for  allowing  the  muster  roll  of ,  for  the  period 

of to ,  19 — ,  to  show as  (presenl  and  mustered)   ( ), 

when,  as  he,  the  said ,  (hen  well  knew,  he  (they)  was  (were)  not  present 

and  mustered  a>  shown  on  said  muster  roll. 


338  MAMA!.    FOB    0OURT8    M  ARTTAL. 

(  II  URGE:  Violation  of  (he  57th  Article  of  War. 

ation:  in  that ,  being  In  command  of ,  and  it  being  hi; 

duty  i..  render  t<>  the a  return  <>f  the  state  of  (the  troops  under  his  com- 
mand i   nil-' thereto  belonging)  for  the  period to ,  did,  at 

.  on   tin' day  of  ,  19 — ,  make  a  return  of  for  said 

I,  which  in-  then  knew  t->  he  false  in  thai  it  showed as  (absent  with 

•i    ( ),  whereas  Hie  said  — was,  as  lie.  the  said .  then  well 

knew,  (absent  without  leave)  ( ). 

n.  Specification:  in  that  ,  being  in  command  of .  and  it  being 

his  duty  to  render  to  the a  return  of  the  state  of  (the  troops  under  his 

command)   (the thereto  belonging)  for  the  period  to ,  did 

(on    and   alter   the day   of  ,   19 — )     (from   until  ), 

through  (neglect  :"  render  such  return. 

CHARGE:  Violation  of  the  58th  Article  of  War. 

in.  Specification:  In  that  did,  at ,  on  or  about  the  day 

.   19     .  attempt  to  desert  the  service  of  the  Tinted  States  by   (seeking 
■  to on  the  steamship )  ( ). 

ition:   In  that  did,  at  ,  on  or  ahout  the  day 

.  19 — ,  in  the   (execution  of  ,i   conspiracy  to  desert   the  service  of  the 

United  States  previously  entered  into  with and  )    (presence  of 

— .  which   the  forces  of  which   he  was  a    member  were  then  oppoE 

attempt  to  desert  the  service  of  the  United  States  by  (seeking  passage  to 

steamship )  ( ).    (C.  M.  C.  M.  No.  — ,  Apr.  —  .1917.) 

17.  Specification:  In  that did,  at ,  on  or  about  the day  of 

.  in — .  desert  the  service  of  the  United  States,  and  did  remain  absent  in 

lion  until   he    (was  apprehended)    (surrendered  himself)    at on   or 

ahout  the day  of ,  19 — , 

Specification:  In  that did,  at on  or  ahout  the day  of 

.    1!(     .    in   the    (execution   of  a    conspiracy   to   desert   the   service   of  the 

I  States  previously  entered  into  with  and  )    (presence  of 

,  which  tii''  forces  of  which  the  accuse/l  was  a  member  were  then  oppos- 
ing), desert  the  service  of  the  United  States  and  did  remain  absent  in  desertion 

until  he   (was  apprehended)    (surrendered  himself)  at  on  or  ahout  the 

day  of ,  19—. 

19.  Specification:  In  that and  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  acting  jointly,  in  pursuance  of  a  common  Intent  and 

in  the  execution  of  a  conspiracy  to  desert  the  service  of  the  United  states  prevl- 

entered  into  by  them  (and  in  the  presence  of ,  which  the  forces  of 

Which  they  were  members  were  then  opposing),  desert  the  service  of  the  United 
Stat.',  ami  did  remain  absent   in  desertion  until  they    (were  apprehended)    (sur- 

ed  themselves  i  at  on  or  about  the  •       —  day  of ,  19 — . 

CHARGE:  Violation  of  the  59th  Article  of  War. 

20,  Specification:  In   that did,  at  ,  on  or  ahout   the  day 

of  .  L9    .  (advise)  (persuade) to  desert  the  service  of  the  United 

by   (saying  In  him ,  or  words  to  that 

(offering  him  a  position  as at ). 

'_'i.  Specification:  In  that ■  did,  at  ,  on  or  ahout  the  day 

of  .   19    .  knowinglj    assist  —  to  desert   the  Bervice  of  the  United 

(by    supplying    him     with    a     railroad    ticket     from    to    ) 

( ),  he,  the  said ,  then  well  knowing  that   the  said  intended 

to  use  the   (railroad  ticket)    ( )   so  supplied  him  in  furtherance  of  his 

to  desert 


APPENDICES.  33S 

CHARGE:  Violation  of  the  60th  Article  of  War. 

22.  Specification:  In  that ,  having  discovered  that  ,  a  soldier 

in  his  command,  was  a  deserter  from  the    (military  service)    (naval  service) 

(Marine  Corps)  did,  at ,  from  about  the  day  of ,  to  about 

the  day  of  ,  19 — ,  retain  said  deserter  in  his  command  without 

informing  superior  authority  or  the  commander  of  the  organization  to  which 
the  deserter  belonged  of  the  presence  of  said  deserter  in  his  command. 

CHARGE:  Violation  of  the  61st  Article  of  War. 

23.  Specification:  In  that ,  did,  at ,  without  proper  leave,  absent 

himself  iron,  his from  about  ,  19 — ,  to  about ,  19 — . 

24.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  fail  to  repair  at  the  fixed  time  to  the  properly  appointed  place 

(of  assembly)  for . 

25.  Specification:  In  that did,  at ,  on  or  about  the  day 

of  ,  19—,  without  proper  leave,  go  from  the  properly  appointed  place 

(of  assembly)  for ,  after  having  repaired  thereto  for  the  performance  of 

said  duty. 

CHARGE:  Violation  of  the  62d  Article  of  War. 

26.  Specification:  In  that did,  at ,  on  or  about  the  day 

of ,  19—,  use  (orally  and  publicly)    ( )  the  following  (contemptu- 
ous)    (disrespectful)     (contemptuous    and    disrespectful)    words    against    the 

of  the  (United  States)  ( in  which  he  was  then  quartered),  to  wit : 

,  or  words  to  that  effect. 

CHARGE:  Violation  of  the  63d  Article  of  War. 

27.  Specification:  in  that  did,  at  ,  on  or  about  the  day 

of  ,  19—,  behave  himself  with  disrespect  toward  ,  his  superior 

officer,  by  (saying  to  him ; ,  or  words  to  that 

effect)    (contemptuously  turning  from  and  leaving  him  while  he  was  talking 
to  him  the  said )    ( ). 

CHARGE:  Violation  of  the  64th  Article  of  War. 

2S.  Specification:  In   that  .   having  received   a   lawful  command  from 

,  his  superior  officer,  to  ,  did  at  ,  on  or  about  the  

day  0f 1  19 — ,  willfully  disobey  the  same. 

29.  Specification:  In    that   did,    at   ,    on   or    about   the   

,1;,..    of  ,  19—,  willfully    (draw)    (lift  up)   a  : against  ,  his 

superior  officer,  who  was  then  in  the  execution  of  his  office. 

30.  m:  In  that  did,  at  ,  on  or  about  the  day 

0f f  19_  willfully  strike ,  his  superior  officer,  who  was  then  in  the 

execution  of  his  office,  (in)   (on)  the ,  with  (a)   (his)  . 

[Note.— For  assaults  upon  officers  amounting  to  felonies  see  A.  W.  93.] 

CHARGE:  Violation  of  the  65th  Article  of  War. 

31.  Specification:  In  that  ,  bavin-  received  a  lawful  order  from  . 

who  was  then   in  the  execution  of  his  office,  to  ,  did  at  ,  on  or 

ftD0Ut  the day  of ,  19—,  willfully  disobey  the  sa.no. 

32.  Specification:  In  that did.  at  .  on  or  about  the  daj 

0f  ,19—.   (attempt)    (threaten)   to   (strike)    ( )  t(in)    (on) 

the  j   with    m  i    (his)   ,  while  said  was  in  tin-  execution  o* 

his  office. 

33.  Specification:  In  that  did,  at .  on  or  about  the  daj 

of  ,   ]£_    behave   in   an    (insubordinate)     (disrespectful)     (InsubordlnaU 

and  disrespectful)   manner  toward  ,  who  was  then  in  the  execution  o* 

his  office,  by  (saying  to  him ,  or  words  to  that  effect  I   ( ). 


MAM    \i     I  mi;    001   BTB-MABTIAL. 

Specification:  En  thai did,  at  .  on  or  aboul  the  day 

i!»    .  willfully  (strike)   (assault  i ,  who  was  then  in  the  execu- 

,„,„  .  by  bim   (ini    cut   the. with  (a)    (his)  . 

Bsaults  ui»""   noncommissioned  officers  amounting  to  felonies 

(II  IRGE:   Violation  of  the  66th  Article  of  War. 

flection:  in  that      did,  at  ,  on  or  about  the day 

0f  attempt  to  create  a  mutiny  in by  urging  the  members  of 

refuse    to    obey    the    order   of   ,    their    (commanding) 

— • 

n:   In  thai  did,  at ,  on  or  about  the  ■ day 

o   mutiny  In  by  unlawfully  assuming  control 

over  about   -       -      soldiers  of  said  command,  and  in  the  execution  of  such 
control   causing   said   Boldlers   to   disregard   and    defy    the    lawful    orders   of 

,  their  (commanding)   (superior)  officer,  to  (assemble  for  drill)  ( ). 

flcation:    In  that did,  at  ,  or  on  about  the .lay 

,  19 — ,  voluntarily  join  in  a  mutiny  which  bad  been  begun  in  

agalnsl   the  authority  of  ,  the  commanding  officer  thereof,  and  did,  in 

combination   with   sundry   other   members  <>f  said  assembled   on    the 

(parade  ground)    ( : — ),  refuse  to   (disperse)    (do  any  farther  duty)    (as- 

semble  for  drill)    ( ). 

CHARGE:  Violation  of  the  67th  Article  of  War. 

::s.  >•/,, ■rjiicatiim:    In  tbai  ,  being  at  and  knowing  on  the 

,1.IV  ,,f 1  19 — p  that  certain  members  of  proposed  and  intended  to 

begin  and  join  in  a  mutiny  against  the  commanding  officer  of  that  ,  at 

o'clock    (a.)    (p.)    m.  on  the.  following  day,  did  fail    (wholly)    to  give 

information  of  said  Intended  mutiny  to  his  commanding  officer  (until  the  hour 

of on  the day  of ,  19—). 

Specification:   In  thai did,  at ,  on  or  about  the day 

(,f  ,   T.i     ,   join   with   other   members  Of   the and   sundry   citizens 

in  sin  attempt  to  break  into  a  Jail  and  release  a  prisoner,  did  assault  and  beat 
the  police  officers  and  other  civil  authorities,  and  did  commit  other  disorders 

until    overpowered    and    restrained    by    a    detachment    of  sent    from    the 

post  of and  compelled  to  return  to  bis  quarters. 

in.  Specification:   In  thai .  being  present  at  a  mutiny  among  the  sol- 

-  -  against  the  authority  of .  the  commanding  officer  thereof, 

did  fail   to  use  bis  Utmosl   endeavor  to  suppress  the  same,  in  that,  having  com- 
manded  the  men  of  bis  own   company   to  return   to   their  quarters,  he  took   no 
means  t«.  compel  their  obedience  or  reduce  them  to  discipline  upon  their  refusal 
said  command. 
(II  IRGE:  Violation  of  the  68th  Article  of  War. 

;i.  Specification:    in  thai             .  being  engaged  In  a   (quarrel)    (fray)    (dis- 
order)   and    bavin-  1 n   ordered    into    (arrest)     (confinement)    by  ,   did, 

,  on  or  aboul  the  -  day  of ,  19—,  [(refuse  to  obey)   (draw 

B  upon)    the  said  1    I  threaten  the  said  by    (saying  to  him 

,    or     Words     t0     thai     effect)      ( )]. 

CH  IRGE:  Violation  of  the  69th  Article  of  War. 

Specification:  In   thai      .  having  been  placed  in    (arrest)    (confine- 

neni  )  by  his  (commanding  officer)   ( )  on  account  of  being  charged  with 

ei.  did  at-      -    .  on  or  aboul  the daj  of    ,  19 — , 

:  his  arresl  >   (escape  from  said  confinemenl  i  before  he  was  set  at  llbei  y 
by  proper  authority. 


APPENDICES.  341 

CHARGE:  Violation  of  the  71st  Article  of  War. 

43.  Specification:  In  that  ,  being  on  duty  as  at  on  or 


about,  the day  of ,  19—,  did  refuse  to  (receive)   (keep)  one , 

a  prisoner  duly  committed  to  his  charge  by  .  who,  at  the  time  of  com- 
mitting said  prisoner,  delivered  to  the  said an  account  in  writing,  signed 

by  himself,  of  the  (crime)    (offense)  charged  against  said  prisoner. 

CHARGE:  Violation  of  the  72d  Article  of  War. 

44.  Specification:  In   that   — ,    (having  been)     (being)    on   duty   as  com- 
mander of  the  guard  at ,  did,  on  or  about  the day  of ,  19—, 

fail  to  report  in  writing  to  the  commanding  officer  of  that  (as  soon  as 

reliev-d    from    his    guard)     (within    124    hours    after    the   confinement    of    said 

prisoner)   the  name  of  ,  a  prisoner  committed  to  his  charge,  the  offense 

charged  against  him.  and  the  name  of  the  officer  committing  him. 

CHARGE:  Violation  of  the  73d  Article  of  War. 

45.  Specification:  In  that  did,  at ,  on  or  about  the  day 

of ,19—,  [without  proper  authority  release]  [through  (design)   (neglect) 

(suffer)  ] ,  a  prisoner  duly  committed  to  his  charge  to  escape. 

CHARGE:  Violation  of  the  74th  Article  of  War. 

46.  Specification:  In  that  ,  being  at  the  time  the  commanding  officer 

at  ,  and  an  application  having  been  duly  made  to  him  by  the  of 

for  the  (delivery)    (apprehension  and  securing)   of  ,  a   (soldier) 

(officer)   under  his  command,  who  was  accused  of  a   (crime)    (offense)    com- 
mitted against  the  laws  of ,  did,  at ,  on  the day  of , 

!9_    refuse  to   (deliver  said  to  said  of  )    (aid  the  said 

of in  apprehending  and  securing  the  said  ). 

CHARGE:  Violation  of  the  75th  Article  of  War. 

47.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  in  disregard  of  his  duty  and  shamefully  (abandon)    (deliver  up 

to  the  enemy)  .which  (it  was  his  duty)   (he  had  been  ordered  by , 

his  proper  superior  officer),  to  defend. 

48.  Specification.-  In  that  ,  while  on  duty  before  the  enemy,   did  at 

(  on  the day  of ,  19 — ,  cast  away  his  (rifle)    (ammunition) 


( )• 

49.  Specification;  In  that ,  being  (present  with)    (in  command  of)  his 

while  it  was  engaged  with  the  enemy,  did  at  ,  on  or  abont  the 

day  0f  (  i9_    abandon  the  said  and   (seek  safety  in  the 

rear)    ( ),  and  did  fail  to  rejoin  it  until  (the  engagement  was  concluded) 

( )• 

50.  Specification:  In  that  did,  while  on  duty  before  the  enemy,  cause 

a  false  alarm  in  the   (camp)    (garrison)    (quarters)    ( )   at  ,  on  or 

about  the day  of ,  19 — ,  by  needlessly  and  srithoul  authority  caus- 
ing the  call  to  arms  to  he  sounded. 

51.  Specification;  In  that  did,  while  on  duty  before  the  enemy,  quit 

his  (company  I  ( post )  ( ),  at ,  on  the day  of 

the  purpose  of  (pillaging)  (plundering)  (pillaging  and  plundering),  and  did  com- 
mit plunder  and  pillage  on  the  property  of  one ,  a  citizen,  by  forcibly  en- 
tering the  house  oT  said .against  his  will,  and  taking  therefrom  and  appro- 
priating money  and  effects  of  the  said of  the  value  of  $       — . 

52.  Specification;  In  thai  did,  at ,  on  or  about  the day 

of  ,  It)—,  run  away  from  his   (company)    ( ),  which  was  then  en- 


MANUAL    l'"i:   I  OUBTS  M  \l;l  IAL. 

.  witii  the  enemy,  and  <n<l  ih>i  return  thereto  until  (after  tin-  engagement 

I  i  concluded)   ( ). 

m:  in   thai  .   being  an    (officer)    (soldier)    of  a   flora 

charged  with  the  duty  of  defending  againsl  an  enemy  then  before  it 

did  at  ,  on  or  about  the  day  of ,  19 — ,  (induce)    (seek  n 

Induce)  (soldiers)  (soldiers  and  officers)  of  that  force  to  shamefully  (abandon) 

(deliver  up)  t"  the  enemy  that ,  which  it  was  their  duty  to  defend,  i>\ 

savin.:  t<»  said   (soldiers)    (soldiers  and  officers)  ,  or  words  to  that  effect. 

:. i  on;  in  thai did,  at  ,  on  or  about  the day 

of ,  19    ,  say  td ,  who  was  then,  with  his  company,  engaged  with 

.  or  words  to  that   effect,  thereby   (inducing)    (seeking  to 

induce!    said  to    [(run   away    from)     (shamefully   abandon)    his    (post)] 

( — 

.•  In  thai did,  at  — '■ ,  on  or  about  the  day 

,  19        say  to .  who  was  then  on  outpost  duty  before  the  enemy, 

,  or  words  to  that   effect,  thereby    (inducing)    (seeking  to  induce)   the 

[run  away  from)    (abandon)  his  (post)]   ( ). 

CHARGE:  Violation  of  the  76th  Article  of  War. 

".■  In  that  ■ ,  being  an  (officer)   (soldier)  under  the  eom- 

— .  commanding  the  (fort)    (post)    (camp)    (guard)    ( )  of 

.  which  was  then  threatened  by  the  enemy,  did,  at  ,  on  or  about 

day  of ,  19 — .  in  combination  with  other  (officers)    (soldiers) 

d  soldiers)  of  said  command,  by compel  said to  (sur- 

rendi  on  >  said  (fort)    (post)   (camp)   (guard)    ( )  .of to 

•  my. 
57.                    on:  In  thai   ,  ,  and  ,  being  (officers)    (sol- 
diers)   (officers  and  soldiers)    under  the  command  of  ,  who  was  then 

commanding  the  (fort)  (post)   (camp)   (guard)   ( )  of ,  whirl. 

then  threatened  by  the  enemy,  did.  at  ,  on  or  aboul   the  day  of 

.  I:-    .  acting  Jointly  ami  in  concert,  refuse  to  perform  further  duty  in 

said  (fort)   (post)  (guard)   ( )  of ,  and  thereby 

compel  the  said to  (abandon  it)  (give  it  up  i  to  the  enemy. 

CHARGE:  Violation  of  the  77th  Article  of  War. 

Iflcation:  in  that .  having  received  as  the  proper  (countersign) 

(parole)   the  word  .  did  at  .  on  or  about  the  day  of , 

to  ,  a   person  to  whom  he  knew  it    was  his  duty  to  give  the 

parole),  the  different   word  as  the  proper   (counter- 

ation:  In  that did.  at ,  on  or  about  the day  of 

.  19—,  make  known  the  (countersign)   (parole),  to  wit. ,  to , 

by  him, .  to  lie  ,-i  person  not  entitled  t..  receive  it. 

Violation  of  the  78th  Article  of  War. 

n:  In  that  did.  at  ,  on  or  about  the day  of 

L9     .   Violate  a  Bafeguard,  known  by   him   to  have  been  placed  over   the 

I  bj ,  at  .  by   (overwhelming  the  guard  posted  for 

the  protection  of  the  same  and  violently  entering  said  premises  and  committing 
and  plunder  therein)  ( ). 

•  ii  IRGE:   Violation  of  the  79th  Article  of  War. 

C!.    Sp*  (  ifloatiOti:  In  that  did.  at  ,  on  or  ahotil   the day  of 

,  19—.  wrongfully  appropriate  to  (his  own  use)   ( )  the  following 


APPENDICES.                                                          343 
public  property  taken  from  the  enemy,  viz:  of  the  value  of  about  % 


and  of  the  value  of  about  $ ,  and  all  of  the  total  value  of  about 

$ . 

02.   Specification:   In   that  did,   at   ,  on  or   about   the  day 

of .  1!) .  neglect  to  secure  for  the  service  of  the  United  States  the 

following  public  property,  which  bad   been   taken  from   the  enemy,  viz,  

of  the  value  of  aboul  $     —     and of  the  value  of  about  $ ,  and  all 

Of  the  total  value  of  about  $ . 

CHARGE:  Violation  of  the  80th  Article  of  War. 

63.  Specification:  In  that  did,  at  ,  or  about  the  day 

of  ,   19 — ,  unlawfully    (buy)    (sell)    ( )    the  following  articles  of 

(captured)     (abandoned)    property,    namely:    of    the    value    of    about 

$ and  — of  the  value  of  about  $ ,  and  all  of  the  total  value  of 

about   $ ,   thereby    [(accepting)    (receiving)    (accepting  and  receiving)] 

[(profit)  (benefit)  (advantage)  (profit,  benefit  and  advantage)]  to  (himself) 
[ ,  his  (brother)    ( )]. 

64.  Specification:     In  that did,  at ,  on  or  about  the  day 

of  ,   19 — ,   fail   to   give   notice   to  proper   authority   that   the   following 

(captured)    (abandoned)    property  had  come  into  his   (possession)    (custody) 

(control),   namely:  of  the  value  of  about  $ and  of  the 

value  of  about  $ ,  and  all  of  the  total  value  of  about  $ ■ — . 

65.  Specification:    In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  fail  to  turn  over  to  the  proper  authority  without  delay  the 

following  (captured)  (abandoned)  property  which  had  come  into  his  (posses- 
sion)   (custody)    (control),  namely:  of  the  value  of  about  $ and 

of  the  value  of  about  $ ,  and  all  of  the  total  value  of  about  $ . 

CHARGE:  Violation  of  the  81st  Article  of  War. 

66.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  inform  a  patrol  of  the  enemy's  forces  of  the  whereabouts  of  a 

military  patrol  of  the  United  States  forces. 

67.  Specification:  In  that  did,  at ,  on  or  about  the  day 

of  .  19 — ,  knowingly  (harbor)    (protect)    (harbor  and  protect)  ,  a 

person  whom  he,  the  said  ,  then  knew  to  be  a  member  of  the  enemy's 

forces,  and  who  was  then  being  sought  by  a  patrol  of  the  United  States  forces, 
by  (concealing  the  said  member  of  the  enemy's  forces  in  his  house)    ( ). 

6S.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of  ,   19 — ,   directly    (hold   correspondence  with)    (give   intelligence   to) 

(hold  correspondence  with  and  give  intelligence  to)  the  enemy  by  writing  and 

transmitting  secretly  through  the  lines  to  one ,  whom  he,  the  said , 

then  knew  to  be  an    (officer)    ( )  of  the  enemy's  army,  a  communication 

(in  words  and  figures  as  follows)   (substantially  as  follows),  to  wit. 

69.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  furnish  and  deliver  to  certain  members  of  the  enemy's  army 

,  of  the  value  of  about  $ ,  and ,  of  the  value  of  about  $ , 

all  of  the  total  value  of  $ ,  he  then  well  knowing  Unit  the  persons  to  whom 

said  goods  were  furnished  and  delivered  were  enemies  of  the  United  States. 

CHARGE:  Violation  of  the  82d  Article  of  War. 

70.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  (lurk)   (act)   (lurk  and  act)  as  a  spy  in  and  about ,  the 

(fortification)  (post)  (quarters)  (encampment)  of  the  Army  of  the  United 
States  there  situated,  and  did  there  (collect)  (attempt  to  collect)  material  infor- 
mation in  regard  to  the  (numbers)    (resources)    (operations)    ( )  of  the 


•\  \  \  MAMA!.   FOR   COURTS-MARTIAL. 

military  forces  of  ili<-  United  states,  with  Intent   to  impart  the  same  to  the 
enemy. 

(  I!  IRGE:  Violation  of  the  83d  Article  of  War. 

71.  Specification:  In  thai  -  ■  did,  at  ,  on  or  about  the day 

(,f  ,  i:>       (through  neglect)    (willfully)   Buffer  ,  of  the  value  of 

.«: ,  military  property  belonging  t<>  the  CTnlted  States,  to  be  (lost)   (spoiled 

by  )   (damaged  by  )  [wrongfully  disposed  of  by  (sale  to ) 

(' )]• 

CHARGE:  Violation  of  the  84th  Article  of  War. 

72,  Spa  \flcation:  In  that  <liil.  at ,  on  or  about  the day 

— ,19 —  [(through  neglect)  (willfully)  Injure  by ]  (lose) ,of 

the  value  of  $ ,  Issued  for  use  in  the  military  service  of  the  United  S 

7:;.  Sped  cation:  in  thai  <lul  at ,  on  or  about  the  

,,f ,  19—,  (unlawfully  sell  to )   (wrongfully  dispose  of  by ) 

of  the  value  of  .$ ,  issued  for  use  in  the  military  service  of  the 

United  States. 
CHARGE:  Violation  of  the  85th  Article  of  War. 
74.  Specification:  In  that was,  (in  time  of  war),  found  drunk  while  on 

,]utv  as t  at ,  on  or  about  the day  of ,  19 — . 

CHARGE:  Violation  of  the  86th  Article  of  War. 

7r>.  Specification:  In  that  ,  being  on  guard  and  posted  as  a  sentinel 

(in  time  of  war),  at  ,  on  or  about  the day  of ,  19—,  was 

found  sleeping  on  his  post. 

76.  Specification:  In  that  — : ,  being  on  guard  and  posted  as  a  sentinel 

I  in  time  of  war),  at  ,  on  or  about  the  day  of  ,  19 — ,  left 

his  post  before  he  was  regularly  relieved. 

CHARGE:  Violation  of  the  87th  Article  of  War. 

77.  Specification:  In  that  ,  who  was  thou  commanding ,  did  on 

or  aboul  the  day  of  ,  19 — ,  become  financially  interested  in  the 

Bale  ,,f 1  brought  into  said  for  the  use  of  the  troops  thereat  by 

,   by    (receiving)    (entering  into   an   agreement   to  receive)    from   the 

s;ij,l  (_  per  <cnt  of  the  profits  on  said  sales)    (the  sum  of  $— )  as  a 

consideration  for  the  privilege  (of )  extended  by  him  to  said . 

78.  Specification:  In  that  ■ ,  who  was  then  commanding ,  did,  on 

,„.  :li„lUt  n,(.  day  of ,  19—,  lay  a  (duty)    (imposition)    (duty  and 

Imposition)  of   (—  per  cent)    ( )   on  the  proceeds  of  all  sales  of  

broughl  into  said  ,  and  did  appropriate  the  moneys  collected  on  account 

dd     (duly)     (imposition)     (duty    and    imposition)    to    (Ins    own    use   and 

benefit)   ( ). 

CHARGE:  Violation  of  the  88th  Article  of  War. 

7t).  Specification:  In  that did.  on  or  about  the day  of , 

do  violence  to ,  an  Inhabltanl  of  the  country,  who  was  bringing  (sup- 

iprovisions)  (— )  to  the  (camp)   (garrison)  (quarters)  of  the  forces 

of  the  i 'iiit*  d  States  there  situated,  by  striking  and  beating  the  said . 

cation:  in  thai ,  and ,  acting  jointly  and  in  concert,  did. 

,,„  ,„•  :i|„„lt  tlll (i;,y  nf ,  in—,  interfere  with ,  an  Inhabitant 

of  the  country,  who  was  bringing   (provisions)    (supplies)    ( )    to  the 

(camp)   i  garrison  i  (quarters)  of  the  forces  of  the  United  states  there  situated 

by    (preventing   the   said  from   passing  over   a    road   leading  into   said 

,   ( )• 


APPENDICES.  345 


81.  Specification:  In  that  ,  did  on  or  about  the  day  of 


19 — (  intimidate ,  an  inhabitant  of  the  country,  who  was  bringing  (provi- 
sions)  (supplies)    ( )  into  the  (camp)    (garrison  i    (quarters)  of  the  forces 

of  the.  United  States  there  situated,  by  [threatening  to  kill  the  said if  he 

continued  to  bring    (provisions)    (supplies)    ( )    into  said    (camp)    (gar- 
rison)   (quarters)]   ( ). 

CHARGE:  Violation  of  the  89th  Article  of  War. 

S'J.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  commit  a  depreciation  upon  (an)    (a.)   (orchard)    ( )  belong- 


ing to and  situated  near  the  said ,  by  [entering  the  same  against 

the  will  of  the  said and  (removing  growing  fruit  from  trees,  the  property 

of )    ( )]. 

83.  Specification:  In  that  and  did  at  ,  on  or  about  the 

day  of ,  19 — ,  commit  a  riot  in  the  public  streets  of  said  

by  (resisting  and  fighting  against  the  peace  officers  of  that )   ( ). 

84.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19 — ,  wilfully  destroy  a  growing  crop  of  oats  in  a  field  belonging  to 

by  (permitting  the  horses  of  his  troop  to  graze  in  said  field)   ( ). 

85.  Specification:  In  that did  at ,  on  or  about  the da 

,  19 — ,  without  the  authority  of  his  commanding  officer  (destroy  a  build- 


ing belonging  to )   ( ). 

86.  Specification:  In  that ,  w-ho  was  then  commanding ,  at , 

did,  on  the day  of ,  19 — ,  complaint  being  made  to  him  that , 

a of  his  command,  had  (damaged)  (destroyed)  (damaged  and  destroyed) 

( )  ,  the  property  of ,  refuse  to  see  reparation  made  to  the 

said  so  far  as  said  's  pay  would  go  toward  such  reparation  and 

as  provided  for  in  the  105th  Article  of  War. 

CHARGE:  Violation  of  the  90th  Article  of  War. 

87.  Specification:  In  that  did,  at  ,  on  or  about  the  day  of 

,  19 ,  use  a    (reproachful)    (provoking)    (reproachful  and  provokin- » 

h  against ,  to  wit  :  ,  or  words  to  that  effect  [and  did  ac< 

pany   said  speech  with  a  provoking  gesture,  to  wit    (shaking  his  closed  fist   in 

the  l'aee  of  the  said  ),   ( )]. 

CHARGE:  Violation  of  the  91st  Article  of  War. 

88.  Specification:  In  that  ,  being  officer  of  the  day  at  and  hav- 
ing, knowledge  that  and  intended  and  were  about  to  engage  in 

a  duel  near  that .  did  on  or  about  the day  of ,  19 — ,  connive 

at  the  fighting  of  said  duel  by  knowingly  permitting ,  one  of  the  parties 

to  said  proposed  duel,  to  leave  the  post  and  go  toward  the  place  appointed  for 

said  duel  and  at  the  time  and  at  the  hour  which  he, ,  then  knew  had  been 

appointed  therefor. 

89.  Specification:  In  that  ,  being  officer  of  the  day  at ,  and  hav- 
ing knowledge  on  or  about  the  day  of ,  19 — ,  that  a  challenge  to 

fight   a  duel   had   been   sent   by  to  ,  did   fail  to   report  the  fact 

promptly  to  the  proper  authority. 

90.  Specification:  In  that and  did  at  ,  on  or  about  the 

day  of ,  19 — ,  fight  a  duel,  using,  as  weapons  therefor,  (swords) 

(pistols)    ( ). 

91.  Specification:  In  that did  at ,  on  or  about  the day  of 

,  19-s  promote  a  duel  between and by  knowingly  acting  as 

;i  messenger  for and  knowingly  carrying  from  said  to  said 

a  challenge  to  tight  a  duel. 


MO  MANUAL  FOR   COURTS- MARTIAL. 

CHARGE:  Violation  of  the  92d  Article  of  War. 

;  In  that did,  at  ,  on  or  about  the  flaj 

of ,  19—,  witii  malice  aforethought,  willfully,  deliberately,  feloniously 

unlawfully,  and  with  premeditation  kill  one ,  a  human  being  by  ish<.,,t 

in-  him  with  a  rifle)    ( )• 

oatton:  In  that did,  at ,  on  or  about  the  day 

of ,  1J.) — ,  forcibly  and  feloniously  against  her  will,  have  carnal  knowledge 

of . 

CHARGE:  Violation  of  the  93d  Article  of  War. 

94.  Specification:  In  that  did,  at ,  on  or  about  the  day 

of ,  lit — .  willfully,  maliciously,  and  feloniously  hum  the  (dwelling  house) 

( )  of . 

\ftoation:  In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,  with  intent  to  (do  him  bodily  harm),   (commit  a  felony,  viz, 

)  feloniously  (strike)   ( )  (in)   (on)  the with  a . 

'ration:  In  that  did,  at ,  on  or  about  the  day 

i.f  ,  19 — ,  in  the  nighttime  break  into  and  enter  the    (dwelling  house) 

( )  of ,  witli  intent  to  commit  a  felony,  viz, . 

!'7.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of ,  19 — ,  fraudulently  convert  to  his  own  use  and  benefit  ,  value 

about  $ ,  the  property  of  ,  intrusted  to  him   (by  the  said  ) 

(for by ). 

95.  Sped  lira  Hon:  In  that  did,  at ,  on  or  about  the  day 

of  ,  19 — ,  feloniously  take,  steal,  and  carry  away  ,  value  about 

$ ,  the  property  of . 

99.  Specification:  In  that  did,  at  ,  on  or  about  the  day 

of  ,   19 — ,   willfully,   feloniously,   and  unlawfully   kill  ; ,  by  

him  (in)    (on)  the with  a . 

■  it ion:  In  thai .  did,  at ,  on  or  ahout  the day 

,  19 — .  unlawfully,  willfully,  and  feloniously  cut  off  the  (hand)   (arm) 

i )  of .     (For  tie    "fienso  of  maiming,  see  Specification  No.  173.) 

101.  Specification:  In  that  (having)    (did,  on  the  —  day  of  , 

19 — )   in  a   (trial  by  court-martial  of )    (deposition  for  use  in  a  trial  by 

-martial  of )   ( )   (taken)    (take)  an  oath,  before  a  competent 

inal)    (officer)    (person)    that    [he   would    (testify)    (declare)    (depose) 
!"y)    truly]     [a    (declaration)     (deposition)     (certificate)     ( )    sub- 
scribed by  him  was  true]    [did  at  on  or  about  the  ■ day  of ' , 

willfully  and  contrary  to  such  oath,    (state)    (subscribe  a   statement)    in 

that  ]   which    (statement)    (declaration)    (deposition)    (ecrtiti- 

a  material  matter  and  which  statement  he  did  not  then  believe  to 

.  In  that  did,  at  ,  on  or  about  the day 

of ,  19 — ,  by  (force  and  violence)   (putting  him  in  fear)  feloniously  take 

from  the  (person)   (presence)  of , ,  value  about  $ . 

CHARGE:  Violation  of  the  94th  Article  of  War. 

•  it ion:  In  that  did,  at  ,  on  or  about  the  day 

of  ,  19 — ,   (make)    (cause  to  be  made  by  )   a  claim  against  the 

(United  States)  (Quartermaster  at )  ( )  in  the  amount  of  $ 

fur  (private  property  alleged  t<>  have  been  (lost)  (destroyed)  in  the  military 
service)  ( ),  which  claim  was  (false)  (fraudulent)  (false  and  fraudu- 
lent)   in   that        and    was   then   known   by   the  said   to  be    (false) 

(fraudulent)   (false  and  fraudulent). 


APPENDICES.  347 

104.  Specification:  In  that did,  at  ,  on  or  about  the day 

of  ,  19 — ,    (present)    (cause  to  be  presented  by  )   for   (approval) 

(payment)     (approval    and    payment)    a    claim    against    the    (United    States) 

(Quartermaster  at  )    ( )   in  the  amount  of  $ ,  for   (services 

alleged  to  have  been  rendered  to  the  United  States  by )    ( ),  which 

claim  was  (false)    (fraudulent)    (false  and  fraudulent)  in  that and  was 

then  known  by  the  said  to  be  (false)  (fraudulent)  (false  and  fraudu- 
lent). 

K).").  Specification:  In  that  did,  at ,  on  or  about  the day 

of  ,  19 — ,  enter  into  an  (agreement)  (conspiracy)  (agreement  and  con- 
spiracy)   with  ,   to  defraud   the  United   States  by    (obtaining)    (aiding 

to  obtain)  the   (allowance)    (payment)    (allowance  and  payment)  of  a 

(false)  (fraudulent)  (false  and  fraudulent)  claim  against  the  United  States  in 
the  amount  of  $ ,  for  (supplies)  .( )  alleged  to  have  been  fur- 
nished to  the  United  States  by  ,  which  claim  was   (false)    (fraudulent) 

(false  and  frudulent)  in  that and  was  the  known  by  the  said to 

be  (false)    (fraudulent)    (false  and  fraudulent). 

100.  Specification:  In  that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allowance, 
and    payment.)     of    a    claim    against    the     (United    States)     (Quartermaster 

at )   ( ),  did,  at ,  on  or  about  the ■ —  day  of ,  19 — , 

(make)    (use)    (make  and  use)    a  ,  which  said  ,  as  he,  , 

then  knew  contained  a  statement  that  ,  which  statement  was    (false) 

(fraudulent)    (false  and  fraudulent)   in  that  and  was  then  known  by 

the  said to  be  (false)   (fraudulent)   (false  and  fraudulent). 

107.  Specification:  In  that  ,   for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allow- 
ance, and  payment)   of  a  claim  against  the   (United  States)    (Quartermaster 

at )   ( ),  did,  at ,  on  or  about  the day  of ,  19 — , 

(advise)    (procure)    (advise  and  procure)   the   (making)    (use)    (making  and 

use)  of  a by  ,  which  said ,  as  he  then  knew,  contained  a 

statement  that  ,  which  statement  was   (false)    (fraudulent)    (false  and 

fraudulent)  in  that ,  and  was  then  known  by  the  said to  be  (false) 

(fraudulent)    (false  and  fraudulent). 

108.  Specification:  In  that  ,  for  the  purpose,  of   (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allowance, 
and  payment)    of  a  claim   against  the    (United   States)    (Quartermaster   at 

)    ( ),  did,  at  ,  on  or  about  the  day  of  ,  19 — , 

(make)    (procure  the  making  of)    (advise  the  making  of)    (advise  and  procure 

the  making  of)   an  oath  by  that  ,  which  said  oath  was  false  in 

that ,  and  was  then  known  by  the  said to  be  false. 

109.  Specification:  In   that  ,  for  the  purpose  of    (obtaining)    (aiding 

others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval,  allow- 
ance, and  payment)   of  a  claim  against  the   (United  States)    (Quartermaster 

at )   ( ),  did,  at ,  on  or  about  the day  of ,  19 — , 

(forge)    (counterfeit)    (forge  and  counterfeit)    (the  signature  of  upon 

a )   (a )  in  words  and  figures  as  follows: . 

110.  Specification:  In  that  ,  for  the  purpose  of   (obtaining)    (aiding 

to  obtain)  the  (approval)   (allowance)    (payment)    (approval,  allowance. 


and  payment)  of  a  claim  against  the  (United  States)  (Quartermaster  at ) 

( ),  did,  at ,  on  or  about  the day  of  ,  19—,  (advise) 

(procure)    (advise  and  procure)    the   (forging)    (counterfeiting)    (forging  and 

counterfeiting)    by   of    (the   signature   of  upon   a   )    (a 

)  in  words  and  figures  as  follows: . 

53915°— 18 24 


MAN  i "  \  i     VOB   0OUBT8  M  LB  I  I.M.. 

in.  Specification:  in  thai  ,  for  the  purpose  of   (obtaining)    (aiding 

a  in  obtain)    the   (approval)    (allowance)    (payment)    (approval,  allow- 
and  payment)   of  :i  claim  againsl   the   (United  States)    (qaartermaster 

— )    ( ),  did,  at ,  on  or  about  tin* day  of ,  19 — , 

(advise  the  ose  of)   (procure  the  use  of)  a  In  words  and  figures 

its  follows :  esame)  (the  signature  thereon)  being  (forged)  (counter- 

I    (forged  and  counterfeited),  and  then  known  by  the  said  to  be 

(forged)   (counterfeited)   (forged  and  counterfeited). 

112.  Specification:  In  that  ,  having   (charge)    (possession)    (custody) 

(control)  of  (money)    ( )  of  the  United  states,   (furnished)    (intended) 

(furnished  and  Intended)   for  the  military  service  thereof,  did.  at  ,  on 

or  aliout   the  day  of  19 — ,   knowingly    (deliver)    (cause  to  be 

dellverel )  to ,  the  said ,  having  authority  to  receive  the  same,  (an) 

i.i'i     (amount)     (number)     (quantity)    which,    as   he,   ,    then    knew    was 

( dollars  cents)    ( )    less   than   the    (amount)     (number) 

(quantity)  f"r  which  he  received  a  (certificate)  (receipt),  from  the  said . 

113.  Specification:  In   that  ,   being  authorized   to    (make)    (deliver) 

(make  and  deliver)    a  paper  certifying  the  receipt  of  property  of  the  United 

(furnished)  (intended)  (furnished  and  intended)  for  the  military  serv- 
ice the]-,. >!".  did.  at  ,  on  or  about  the day  of  ,  19 — ,   (make) 

(deliver)  (make  and  deliver)  to a  writing  in  words  and  figures  as  fol- 
lows:   ,  without  having  full  knowledge  of  the  truth  of  the  statements 

therein  contained  and  with  the  intent  to  defraud  the  United  States. 

111.  specification:  In  that  did,  at ,  on  or  about  the  day 

of ,  19 —  (feloniously  take,  steal,  and  carry  away)  (embezzle)  (knowingly 

and  wilfully  misappropriate)  (apply  to  his  own  use)  (apply  to  his  own  benefit) 
(apply  to  his  own  use  and  benefit)    (wrongfully  sell)    (knowingly  and  without 

proper  authority  sell)    (wrongfully  and  knowingly  sell), of  the 

value  of  about  $ — ■ .  property  of  the  United  States   (furnished)    (intended) 

(furnished  and  intended)  for  the  military  service  thereof. 

1 1",.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  knowingly  (purchase)    (receive  in  pledge)  from , 

(in  i  (employed  in)  the  military  service  of  the  United  States  for  an  (obliga- 
tion)   (Indebtedness)  ,  of  the  value  of  about  $ ,  property  of  the 

United  States,  the  said  not  having  the  lawful  right  to   (sell)    (pledge) 

the  same. 

CHARGE:  Violation  of  the  95th  Article  of  War. 

ip;.  Specification:  In  that  ,  being  Indebted  to  various  creditors  in  the 

sum  of  about  $ and  being  without  either  means  or  probable  means  with 

which   to  liquidate  within  a   reasonable  time  said   Indebtedness,  did,  at  , 

on  or  about  the day  of ,  19 — ,  unnecessarily  contract  with  

a  further  Indebtedness  of  about  $ . 

117.  Specification:   In  that  was,  at  ,  on  or  about  the  day 

of  ,  19--,  so  (drunk)  (disorderly)  (drunk  and  disorderly)  while  in  uni- 
form, in  the  presence  and  bearing  of  several  persons,  as  to  disgrace  the  military 
■en  ice. 

lis.   Specification:    In    that    ,    having    assigned    to    his    claim 

(againsl  the  United  states)  for  pay  in  full  for  the  month  of ,  19 — ,  did, 

at  —         .  <>n  or  about  the  —  day  of  -    ,  19-  -.  assign  to a  second 

claim  againsl    the   United   Stales  for  pay   in   full    for  the  said   month  of  , 

19 — ,  Which  second  claim  was  by  him  known  to  he  false  and  fraudulent. 

11'.).    Specification:    In    that  .    being    indebted    to   in    the    sum    of 

I for  ,  Which  amount    became  due  and   payable    (on)    (about)    (on 

or  about  i  .  did,  at  ,  on  or  about    the         day  of  ,  19 — , 


APPENDICES.  349 

without  due  cause  fail  and  neglect  to  pay  said  debt,  notwithstanding  the  fact 

that  he  had  been  repeatedly  requested  by  the  said  to  pay  the  amount 

thereof,  thereby  bringing  discredit  upon  the  military  service. 

120.  Specification:  In  that ,  having  on  or  about  the day  of  19 — 

become  indebted  to in  the  sum  of  about  $ for ,  and  having 

failed  without  due  cause  to  liquidate  said  indebtedness,  and  having  on  or  about 

the day  of ,  19 — ,  promised  in  writing  to  said that  he  would 

on  or  about  the day  of ,  19—,  (settle  such  indebtedness  in  full) 

(pay  on  such  indebtedness  the  sum  of  $ ),  did,  without  due  cause,  at 

,  on  or  about  the  day  of  19—,  to  the  disgrace  of  the  military 

service,  fail  to  keep  said  promise. 

121.  Specification:  In  that  ,  having  made  and  executed  in  due  form 

his  voucher  for  pay  as for  the  month  of ,  19 — ,  and  having  duly 

assigned  the  said  voucher  to ,  did  at on  or  about  the day 

of ,  19 — ,  while  the  said  voucher  and  the  assignment  thereof  remained  in 

force  and  effect,  falsely  certify  with  his  official  signature,  to  the  correctness  of 
another  voucher  for  pay  for  the  said  month  of  ,  19 — ,  duly  made,  exe- 
cuted, and  assigned  to  ,  which  said  certificate  was  in  words  as  fol- 
lows:   . 

122.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  deceive ,  officially  (report)   (state)  to  the 

said ,  that ,  which  (report)   (statement)  was  (known  by  the  said 

to  be  untrue)   (believed  by  the  said to  be  untrue)   (made  by  the 

said  With  disregard  of  a  knowledge  of  the  facts)    (made  by  the  said 

as  true  when  he  did  not  know  it  to  be  true)  in  that . 

123.  Specification:  In  that  ,  with   intent  to  defraud  ,   did,  at 

,  on  or  about  the day  of ,  19 — ,  unlawfully  pretend  to 


that ,  well  knowing  that  said  pretenses  were  false,  and  by  means  thereof 

did  fraudulently  obtain  from  the  said  (the  sum  of  $ )    (mer- 
chandise of  the  value  of  $ )   ( ). 

124.  Specification:  In  that  ,  having  at ,  on  or  about  the 

day  of ,  19 — ,  voluntarily  given  his  pledge  in  words  and  figures  as  fol- 
lows : ,  which  pledge  was  accepted  by  his  commanding  officer ,  did, 

at ,  on  or  about  the day  of ,  19 — ,  in  disregard  of  his  honor 

violate  said  pledge  by . 

CHARGE:  Violation  of  the  96th  Article  of  War. 

125.  Specification:  In  that ,  being  on  guard  as  a ,  did,  at , 

on  or  about  the day  of ,  19 — ,  abandon  his  guard. 

[Note. — This  form  will  be  used  only  in  case  where  absence  from  guard  is 
coupled  with  an  intent  not  to  return  during  the  tour  of  duty.  Ordinary  absence 
from  guard  duty  will  be  charged  under  A.  W.  61.) 

126.  Specification:   In  that did,  at ,  on  or  about  the day 

of ,  19—,  [kick  a  public  (horse)   ( )  in  the  belly]    ( ). 

127.  Specification:    In  that  ,  a   (sentinel)    (overseer)    ( ),  being 

in  charge  of  prisoners,  did,  at  ,  on  or  about  the  day  of  , 

19 — ,  allow ,  a  prisoner  under  his  charge,  to  (go  to)    (enter)    (go  to  and 

enter)  an  unauthorized  place,  to  wit:  . 

128.  Specification:  In  that -,  a  (sentinel)   (overseer)   ( ),  being  in 

charge  of  prisoners,  did,  at ,  on  or  about  the day  of ,  19 — , 

allow  ,  a  prisoner  under  his  charge,  to  (hold  unauthorized  conversation 

with  )    (loiter)    (neglect  his  task  by  )    (obtain  )    ( ). 

129.  Specification:    In  that  ,  a    (sentinel)    (overseer)    ( ),  being 

in  charge  of  prisoners  and  having  received  a  lawful   order  from  ,   to 


350  MANUAL  FOR  COURTS-MARTIAL. 

require  :i  prisoner  under  hlfl  charge  to  ,  did,  at  ,  on  or  alms 

tiu. ,iuy  of ,  10— ,  tail  to  obey  the  same. 

flcation:  In  (hat  did,  at  ,  on  or  about  the d;< 

of .  19    -.  without  authority,  appear  in  civilian  clothing. 

i:;i.  Specification:  In  that did,  at ,  on  or  about  the daj 

ppear  (at)  ton)  (withouthis )   (with  his 

do!  buttoned)  (in  an  andean )  ( ). 

132,  Specification:  In  that ■  did,  at ,  on  or  about  the day 

of  .  10—,  attempt  to    (strike)    ( )   (in)    (on)   the  

with  . 

[Note. — FV>r  assaults  upon  officers  and  noncommissioned  officers  amounting  to 
:  A.   W.  98.] 

13a  Specification:  in  that did,  at ,  on  or  about  the day 

of ,  10—,  (strike)   ( )  (in)   (on)  the with . 

[Xotk. — See  note  under  Specification  132.] 

13  I.  Bpi  ciflcotion:  In  that did,  at (on  or  about  the day 

of ,  19 — ),  (between and ),  with  the  intention  of  evading 

duty)    ( )    as  a    (soldier)    ( ),   feign    (illness),    (disability!. 

(insanity),   ( ). 

136,  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19—  (attempt  to),  (threaten  to)  (strike)   ( )  ,  a  sentinel 

in  tin  execution  of  his  duty,  [  (in)  (on)  the ]  with . 

136.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  strike  ( )  ,  a  sentinel  in  the  execution  of  his  duty, 

(in)    (on)  the  with . 

137.  Specification:  In  that ,  a  prisoner  in  confinement  serving  sentence 

in  the  post  guardhouse,  ( ),  did,  at ,  on  or  about  the day  of 

,  19 — ,  (escape)   (attempt  to  escape)  from  such  confinement. 

13S.  Specification:  In  that ,  a  prisoner,  did,  at ,  on  or  about  the 

day  of ,  19 — ,  use  the  following  disrespectful  language  to  , 

n  sentinel  in  the  execution  of  his  duty:  " ,"  or  words  to  that  effect. 

l",!t.  Specification:  In  that  ,  having  been  restricted  to  the  limits  of 

,  did,  at  ,  on  or  about  the  day  of ,  19 — ,  break  the 

same  by  poing  to . 

140.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  unlawfully  carry  a  concealed  weapon,  viz,  a . 

1  II.  Specification:  In  that ,  did.  at ,  on  or  about  the day 

of ,  19 — ,  (urinate)  (defecate)  ( )  (on  the  floor  of  the  squad  room) 

( )• 

1  (2.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19— ,  willfully  and  unlawfully  [(conceal)   (remove)     mutilate)   (ob- 

literate)  (destroy)]  [attempt  to  (conceal)  (remove)  (mutilate)  (obliterate) 
(destroy)]  [take and  carry  away  with  intent  to  (conceal)  (remove)  (mutilate) 
(obliterate)  (destroy)  (steal)]  a  public  record,  to  wit:  (the  descriptive  list  of 
)   ( )• 

143.  Specification:  In    that    ,    a    prisoner    in    confinement    in    the   post 

guard  house.   ( ),  did,  at  ,  on  or  about  the  day  of  

lit     .  conspire  with  and  to  escape  from  such  confinement.     (Fo: 

joint  charge  so.-  par.  60.) 

1  1 1.  Specification:  Tn  that did,  at ,  on  or  about  the day 

of  ,  19 — ,  willfully  destroy  ,  value  about  $ ,  property  of  the 

United  Btat 

146.  Specification:  In  that  did.  at ,  on  or  about  the da' 

Of ,  10     .  through  carelessness,  discharge  a   (service  rifle)    ( )   in  hie 

(squad  room)  (In  his  tent)  < ). 


APPENDICES.  351 


146.  Specification:  In  that ,  having  received  a  lawful  order  from  • 


a  sentinel  in  the  execution  of  his  duty,  to ,  did,  at ,  on  or  about  the 

day  of ,  19—,  (fail  to  obey)   (willfully  disobey)  the  same. 

147.  Specification:  In  that was,  at ,  on  or  about  the day 

of ,19 — ,  (drunk)   (disorderly)   (drunk  and  disorderly)  in  (camp)   (post) 

(quarters)   ( ). 

14S.  Specification:  In  that was,  at ,  on  or  about  the day 

of ,  19 — ,  (drunk)    (disorderly)    (drunk  and  disorderly)   in  uniform  and 

did  thereby  bring  discredit  upon  the  military  service. 

1-10.  Specification:  In  that ,  a  sentinel  ( )  in  charge  of  prisoners, 

(lid    at  1  on  or  about  the  day  of  ,  19—,  drink  intoxicating 

liquor  with ,  a  prisoner  under  his  charge. 

150.  Specification:  In  that  ,  a  prisoner,  was,  at  ,  on  or  about 

the day  of ,  19 — ,  found  drunk. 

151.  Specification:    In    that   ,    having   received   a   lawful   order    from 

to  ,  the  said  being  in  the  execution  of  his  office,  did, 

at ,  on  or  about  the day  of ,  19—,  fail  to  obey  the  same. 

152.  Specification:  In  that  did,  at  ,  on  or  about  the  ■ 

day  of ,  19 — ,  violate  (standing  orders)  (regulations)  of by . 

153.  Specification:  In  that  did,   at  ,   on   or  about  the  

day  of ,  19 — ,  wrongfully  use ,  a  narcotic  drug. 

154.  Specification:  In  that  ,  being  indebted  to  in  the  sum  of 

$ ,  which  amount  became  due  and  payable    (on)    (about)   ,  did, 

at  ,  on  or  about  the day  of ,  19 — ,  without  due  cause,  fail 

and   neglect   to   pay   said   debt,   notwithstanding   the   fact   that   he   had   been 

repeatedly  requested  by  the  said  to  pay  the  amount  thereof,  thereby 

bringing  discredit  upon  the  military  service. 

155.  'Specification:  In  that ,  having  been  directed  to  report  for  prophy- 
lactic treatment  at   (the  post  hospital)    ( )   did,  at  ,  on  or  about 

the day  of ,  19 — ,  fail  to  report  as  directed. 

156.  Specification:  In  that did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  deceive ,  officially  (report)    (state)  to  the 

said  1  that  ,   which    (report)     (statement)    was    (known   by   the 

said to  be  untrue)   (believed  by  the  said to  be  untrue)   (made  by 

the  said  with  disregard  of  a  knowledge  of  the  facts)    (made  by  the 

said as  true  when  he  did  not  know  it  to  be  true)  in  that . 

157.  Specification:  In  that ,  (having)   (did  on  the day  of , 

19 — )  in  a  (trial  by  court-martial  of )    (deposition  for  use  in  a  trial  by 

court-martial  of )    ( )    (taken)   (take)  an  oath,  before  a  competent 

(tribunal)  (officer)  (person)  that  [(he  would  testify)  (declare)  (depose) 
(<ntiiy)  (truly)]  [a  (declaration)  (deposition)  (certificate)  ( )  sub- 
scribed by  him  was  true]  did,  at ,  on  or  about  the day  of , 

19_   willfully  and  contrary  to  such  oath,   (state)    (subscribe  a  statement)   in 

substance  that  ,  which   (statement)    (declaration)    (deposition)    (certifi- 

(.;iir  i    ( )  he  did  not  then  believe  to  be  true. 

[Note. — For  charging  perjury  see  Specification  No.  101.] 

l.'S.  Specification:  In  that did,  at — ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  defraud,  feloniously  forge  (in  its  entirety)   [by 

(altering )  (erasing )  (adding )]  a  certain  (check)  ( ) 

in  the  following  words  and  figures . 

159.  Specification:  In  that  (Sergeant)    (Corporal)  did,  at  ,  on 


or  about  the day  of ,  19 — ,  gamble  with  Privates and . 

160.  Specification:  In  that  did,  at ,  on  or  about  the day 

of ,  19 — ,  gamble  in  quarters,  in  violation  of  orders. 


M\.\TAI.    FOR    COURTS-MARTIAL. 

L61.  Specification:  Tn  thai  did.  :it .  on  or  abort  the day 

while  en  m  barrack  window)    ( )   Indecently  expose  to 

public  vl.'w  his  ( ). 

162.  Specification:  in  thai  (for  and  in  behalf  of  one t  did.  at 

,  on  .T  abonl    the  day  of  ,  1!>— ,  loan  to  $ . 

under  an  agreement  whereby  he,  tin-  said  .  was* to  receive  for  tin'  a*  of 

ioney  for      (months)  (days)    Interest  ;U  the  rate  <>f  per  cent 

in. nun  (month)  (the  sum  of  $ ),  thereby  (demanding)   (receiving) 

(demanding  and  receiving)  an  usurious  rate  of  Interesl  for  said  loan. 

L63.  Specification:  In  that ,  while  posted  :is  a  sentinel,  did,  at  . 

mi  .n'  about  the day  of ,  19 — ,  loiter  on  his  post. 

L64.  Specification:  In  that  ,  with  intent  to  defraud,  did.  at  .  on 

or    aDOUt    the   day    of   ,    19 — ,    unlawfully    pretend    to    that 

,  well   knowing  that  said  pretenses  were  false  and  hy   means  thereof  did 

fraudulently   obtain   from   the  said  (the  sum  of  $ )    (merchandise 

of  the  value  of  $ )    ( ). 

165.  Specification:   In  that  ,  while  suffering    (with)    (from)    , 

did.  at  ,  on  or  about  the  clay  of ,  19 — .  refuse  to  suhinit  to 

the  (denial  or  medical  treatment)    (surgical  operation)   prescribed  hy  , 

the  attending  (dental)  surgeon  for  the  (disease)  (injury),  the  said  (treat- 
ment)   (operation)    consisting  in  ,    (said  operation  having  been  certified 

hy  the  attending  surgeon  as)  being  necessary  (for  the  removal  of  a  disability 
thai    prevents   Hie   full   performance  <>f  military  duty)    and   without   risk   to   his 

life  (and  the  accused  having  I d  advised  that  such  certificate  had  been  made). 

(<  .  l/.  C.  l/..  No.  ',.) 

Specification:  In  thai (private)  ,  having  been  found  to  be 

Buffering  from  ami  having  been  notified  hy  ,  (Medical)    (Dental  i 

Corps,  that    (an  operation)    (medical   treatment)    (dental   treatment)    consisting 

of  was  lessarj    to  enable  him  to  perform  properly  his  military  duties 

did.  at  ,  on  or  about ,   19 — .  refuse   (<»  submit    to  such"   (operation) 

(medical  treatment)    (denial  treatment);  thai   after  such   refusal   the  said    (pri- 

-  examined  by  a  board  convened  under  authority  of  section  IV, 

<;.  I ».  is.  War  Department,  1918;  that  the  said  board  found  that  the  (operation  > 

(medical  treatment)    (denial  treatment)   advised  by  the  said  .   (Medical) 

(Dental)  Corps,  was  necessary  to  enable  the  said  (private)  properly  to 

perform    his    military    duties;    that    the    said    (private) was.   at  , 

on  or  about  ,  19 — ,  not  died  of  the  findings  of  the  said  board  and  that 

thereafter  he  persisted  in  his  refusal  and  still  persists  in  his  refusal  to  submit 
to  such  (operation)  (medical  treatment)  (dental  treatment).  (C.  M.  C.  M., 
Wo.  }.i 

L66.   Specification:  In  that —  did,  at  ,  on  or  about   the  day 

of  ,  19 — ,  willfully  mahn  himself  in  the  ■ —  hy   (shooting  himself  with 

)  ( -),  thereby  unfitting  himself  for  the  full  performance  of  military 

service. 

167.   Specification:   In  that  ,  while  posted  as  a  sentinel,  did.  at  . 

on   or  about    the  day   of  ,   19 — .  sit    down   on    his  post 

L6&   Specification:  In  that did,  at  ,  on  or  about  the  day 

of .  }'.'    ,  commit  sodomy  upon  the  person  of  one . 

I  Noii..      If  the  acts  alleged  do  uo1    amount    to  sodomy  as  defined  in   par.  443, 

the  act-;  committed  will  be  accurately   described  in  the  specification.] 

L69.  Specification:  in  that      -  -     did.  at  .  on  or  aboui  Hi,'  day 

of  ,  id    .  while  accompanying  his  organization  on   (a  practice  march) 

i  maneuvers  I  Btraggle. 


APPENDICES.  352A 

170.  Specification:  In  that  ,  knowing  that  would  corruptly  and 

willfully  (give  false  testimony)   (make  a  false  declaration,  etc.),  did,  at , 

on  or  about  the day  of ,  19 — ,  procure  the  said  to  commit 

perjury,  by  inducing  him,  the  said  ,  to  take  an  oath  before  a  competent 

(tribunal)    (officer)    (person)  in  a  (trial  by  court-martial  of )  that  [he, 

the  said ,  would  (testify)  (declare)  (depose)  (certify)  truly]  [a  (decla- 
ration) (deposition)  (certificate)  subscribed,  by  him  was  true]  and,  willfully, 
corruptly,  and  contrary  to  such  oath,  to  (testify)    (declare)    (depose)    (certify) 

as  follows:   ,   which    (testimony)     (declaration,   deposition,   etc.) 

was  false,  was  (material)  (a  material  matter)  and  was  known  by  the  said 
and  the  said  to  be  false.     (C.  M.  C.  M.,  No.  1.) 

171.  Specification:  In  that  did,  at  ,  on  ,  with  intent  to 

defraud,  feloniously  utter  to  as  true  a  certain    (written  instrument) 

( ),  in  the  following  words  and  figures,  " ,"  the  said  well 

knowing  that  the  said  (instrument)    ( )  was  forged. 

172.  Specification:  In  that  — ,  a  prisoner  on  parole,  did,  at  ,  on 

or  about  the  day  of  ,  19 — ,  break  his  parole  by  . 

173.  Specification :  In  that  did,  at ,  on  or  about  the day 

of ,  19 — ,  with  intent  to  (maim)  (disfigure)  ,  willfully  and  feloni- 
ously [(cut)    (bite)    ( )  the  (nose)    (ear)    ( )  of]   [(throw)    (pour) 

corrosive  acid  ( )  upon]  the  said .     (For.  mayhem,  see  Specification 

No.  100.) 

174.  Specification:  In  that  did,  at  ,  on  or  about  felo- 
niously receive,  have,  and  conceal  (describe  property  as  in  larceny),  of  the  goods 
and  chattels  of  (name  owner),  then  lately  before  feloniously  stolen,  taken,  and 
carried  away;  he,  the  said  (accused),  then  well  knowing  the  said  goods  and 
chat  i  els  to  have  been  so  feloniously  stolen,  taken,  and  carried  away.  ( C.  M.  C.  M. 
No.  J,.) 


APPENDIX  4a. 

FORMS   FOR  SYNOPSES   OF   CONVICTIONS   BY   COURT-MARTIAL    (for  entry 
in  service  record). 

INSTRUCTIONS. 

The  forms  for  recording  the  synopses  of  convictions  by  court-martial  as  set 
forth  blow  constitute  a  general  guide  for  use  in  entering  convictions  on  the 
service  record,  the  synopsis  of  the  record  being  entered  in  the  following  sequence 
in  each  case: 

(</)  Article  of  War  ;  (b)  synopsis  of  specification  ;  (c)  date  of  commission  of 
offense. 

(See  forms  for  synopses  of  sentences,  Appendix  9a.) 

FORMS. 

(Those  forms  cover  the  charges  and  specifications  given  on  pp.  336  to  352.) 
CHARGE:    54  AW. 

1.  Fraud,  enl.  while  already  in  service, /IS. 

2.  Fraud,    enl.    after     (dishonorable    discharge)     (conviction    of    felony) 

( ), AS. 

3.  Fraud,  enl.  after  imprisonment  in   (jail)    (reformatory)    (penitentiary), 

/18. 

4.  Fraud,  eid.  while   (under  IS)    (married)    ( ),  /18. 

CHARGE:    55  AW. 

5.  omitted;  refer  to  officers  only. 
CHARGE:   56  AW. 

0  to  12,  inclusive,  omitted ;  refer  to  officers  only. 
CHARGE:    57  AW. 

13  and  14  omitted ;  refer  to  officers  only. 
CHARGE:  58  AW. 

1.",.  Attempting  to  desert,  /IS. 

16.  In    the     (execution    of    a    conspiracy    with    )     (presence    of    the 

enemy)  attempting  to  desert,  /IS. 

17.  Desertion  from  until    (apprehended)    (he  surrendered  himself) 

on  .  /IS. 

IS.  In    the    (execution   of   a    conspiracy    with   )     (presence   of   the 

enemy  i  desertion  from  until   (apprehended)    (he  surrendered 

himself)   on , /IS. 

19.  Jointly  with  others  in  the  execution  of  a  conspiracy    (and  in  the  pres- 

ence of  the  enemy)    deserted  from  until   they    (were  appre- 
hended)  (surrendered  themselves)  on  .  /IS. 

CHARGE:  59  AW. 

20.  (Advising)    (persuading)  to  desert,  /18. 

21.  Knowingly  assisting to  desert, /18. 

CHARGE:   60  AW. 

J'J.   Omitted;   refer  to  officers  only. 
CHARGE:   61  AW. 

s.\.  Awoi..  from  to,  /18. 

24.  Absent    from    (retreat)    ( ), /IS. 

25.  Leaving  plate  (of  assembly)  for  (retreat)    ( ),  /IS. 

3o2n 


MANUAL   FOR    COURTS-MARTIAL. 
CHARGE:   62  AW. 

25,  using   (contemptuous)    (disrespectful)    (contemptuous  and  dlsrespect- 

ful)    words   against    the  of   the    (United   States)    ( ), 

/18. 

CHhRGE:   63  AW. 

L'T.  Dlsrespecl  toward  his  Buperlor  oihcer, /18. 

CHARGE:   64  AW. 

28.  Willfully    disobeying    a    lawful    command    of    ins    superior    officer, 

/18. 

L".t.  willfully  (drawing)    (lifting  up)  a against  ids  superior  officer, 

18. 

:;d.  Willfully  striking  his  superior  oihcer,  /18. 

CHARGE:   65  AW. 

31.  willful  disobedience  of  a  lawful  order  of  a  XCO, /is. 

::u.   (Attempting)    (threatening)   to  (strike)    (assault)   NCO,  /18. 

::;:.   (Insubordinate)    (disrespectful)    (insubordinate  and  disrespectful)  be- 
havior toward  NCO,  /18. 

34.  Willfully   (striking)    (assaulting)  NCO, /18. 

CHARGE:   66  AW. 

35.  Attempting  to  create  a  mutiny, /18. 

36.  Causing  a  mutiny,  /18. 

:',T.   Joining  in   a    mutiny,  /18. 

CHARGE:    67  AW. 

38.  Falling  to  give  information  of  an  intended  mutiny, /18. 

39.  With   others  attempted  to  break  into  a  jail  and   release   a   prisoner, 

/18. 

in.   Nol   usiuu  his  utmost  endeavor  to  suppress  a  mutiuy,  

CHARGE:   68  AW. 

II.   Being    engaged    in    a    (quarrel)     (fray)     (disorder)    and    having    1 a 

ordered    into    (arrest)     (confinement)    by   (refused    to   obej  | 

(drew  a  upon)    (threatened)  him,  /IS. 

CHARGE:    69  AW. 

IL'.    (Breach  of  arrest)    (escape  from  confinement),  /IS. 

CHARGE:   71  AW. 

I.",.   Refusing   to    (receive)    (keep)    a   prisoner,   while  on   duty   as  , 

/18. 

CHARGE:    72  AW. 

n.  As  commander  of  the  guard  failed  to  report  the  name  of  a  prisoner 

committed  to  his  charge,  /18. 

CHARGE:    73  AW. 

45.  | Without    proper    authority    releasing    prisoner]     [suffering    through 

(design)   (neglect  i  prisoner  to  escape], /18. 

CHARGE:   74  AW. 

16.  Omitted;  refers  to  officers  only. 
CHARGE:   75  AW. 

17.  (Abandoning)     (delivering    up    t<»   the   enemy) — ,    which    (it    was 

his  dutj  i   (he  ha. I  I n  ordered)  to  defend.  /18. 

is.  Casting   away    his    (rifle)     (ammunition)    whil duty    before   the 

enemy.  Is. 

19.  Being   (present  with*    (in   command  of  his  — )    abandoned  said 

.  and  (sought  safety  in  the  rear)  ( ),  while  engaged  with 

ti oemy,  -  is. 

:."    Causing  a   false  alarm   in  (he   (camp)    (garrison)    (quarters)    ( ), 

at ,  while  on  dutj   before  the  enemy, /18. 


APPENDICES.  352D 

CHARGE:   75  AW— Continued. 

51.  Quitting    his     (company)     (post)     ( ).    at    .    to     (pillage) 

(plunder)    (pillage  and  plunder)    while  on  duty  before  the  eneinv, 

/18. 

52.  Running  away  from  his  (company)    ( ),  which  was  then  engaged 

with  the  enemy,  /IS. 

53.  (Inducing)    (seeking  t<>  induce)   soldiers   (and  officers)    to   (abandon) 

(deliver  up)  to  the  enemy ,  which  it  was  their  duty  to  defend, 

/18. 

54.  (Inducing)     (seeking   to   induce)    ,    then   with    his   company   en- 

gaged with  the  enemy,  to    (run  away  from)    (abandon)    his    (post) 
( ),  AS. 

55.  (Inducing)    (seeking  to   induce)    ,   on   outpost   duty  before  the 

enemy    to     (run    away    from)      (abandon)     his     (post)      ( ), 

/18. 


CHARGE:    76  AW. 

5ft   In  combination  with  others  of  his  command  compelled  the  commander 

to  (surrender)    (abandon)  ,  to  the  enemy,  /IS. 

o7.  Jointly   with  others  refusing  to   perform  further  duty  in  defense  of 

,    thereby   compelling    the   commander    thereof   to    (abandon) 

(surrender)  said  (fort)  (post)  (camp)  (guard)  ( ), /18. 

CHARGE:   77  AW. 

58.  Giving  to  a  person  entitled  thereto  the  wrong  (countersign)    (parole), 

/18. 

59.  Making   known    the    (countersign)    (parole)    to   a  person   not  entitled 

thereto,  /18. 

CHARGE:    78  AW. 

60.  Violating  a  safeguard,  /18. 

CHARGE:   79  AW. 

Gl.  Appropriating  to  (his  own  use)    ( ),  public  property  taken  from 

the  enemy,  viz,  of  the  value  of  $ ,  /IS. 

62.  Neglecting  to  secure  for  the  service  of  the  United  States  public  prop- 

erty taken   from  the  enemy,   viz,  ,   of  the  value  o'f  $ , 

/18. 

CHARGE:  80  AW. 

63.  (Buying)  (selling)  ( )  (captured)  (abandoned)  property,  viz, 

.  of  the  value  of  $ ,  /18. 

64.  Failing  to   report    (captured)     (abandoned)    property   coming  into   his 

(possession)   (custody)   (control),  viz, ,  of  the  value  of  $ , 

/18. 

65.  Palling   to   turn   over    (captured)    (abandoned)    property   coming   into 

.his    (possession)    (custody)    (control),   viz,  ,  of  the  value  of 

$ ,  /18. 

CHARGE:   81  AW. 

66.  informing   an   enemy   patrol   of  the  whereabouts  of  a   United   States 

patrol,  /18. 

U7.  Knowingly  (harboring)  (protecting)  (harboring  and  protecting)  a 
member  of  the  enemy's  forces  who  was  then  being  sought  by  a  United 
States  patrol,  /18. 

68.  (Holding  correspondence  with)  (giving  Intelligence  to)  I  holding  corre- 
spondence with  and  giving  intelligence  to)  the  enemy,  /18. 

60.    Furnishing  and  delivering  to  members  of  the  enemy's  army,  to 

the  value  of  I , /18. 

CHARGE:    82  AW. 

70.  Acting  as  a  spy, /18. 


MANUAL    l  OB    «  OURTS-MABTIAIi. 

CHARGE:    83  AW. 

71.  (Through  neglecl  i  (willfullj  I  Buffering ,  of  the  value  of  $ , 

military    property   of   the   United    sun.-,   to   be    (lost)    (spoiled   by 

i    (damaged  by  )    [wrongfully  disposed  of  by   (sale  to 

)  ( )],- 18. 

CHARGE:  84  AW. 

72.  (Through  neglect)   (willfully)   (injuring)   (losing)  ,  of  the  value 

.   issued   for  use  In  the  military   service  of  the   United 
States,  -    18. 

78.  (Unlawfully  selling  to  )    (wrongfully  disposing  of  by  ) 

-..  of  the  value  of  $ ,  issued  for  use  In  the  military  service 

of  the  United  states. /18. 

CHARGE:   85  AW. 

7  1.  Pound  drunk  while  <m  duty  as , /18. 

CHARGE:   86  AW. 

75.  Sleeping  <>n  post, /18. 

Leaving  post  before  being  regularly  relieved, /18. 

CHARGE:  87  AW. 

77  and  78  omitted  ;  refer  to  officers  only. 
CHARGE:   88  AW. 

79.  Doing    violence    to,    by    striking    and    beating,    an    inhabitant    bring- 

big     (supplies)      (provisions)     to     (camp)      (garrison)     (quarters), 
/18. 

80.  Acting  Jointly  with  (another)    (others)   interfered  with  an  inhabitant 

bringing  (supplies)    (provisions)   to   (camp)    (garrison)    (quarters), 



Si.  Intimidating  an  Inhabitant,  bringing  (provisions)    (supplies)    ( ) 

Into    (camp)    (garrison)    (quarters),  by   threatening   to   kill  

If  he  continued  to  bring  (provisions)  (supplies)  ( )  into  (ramp) 

rlson)   (quarters)   ( ). 18. 

CHARGE:    89  AW. 

82.  Committing  a   depredation   upon    (an   orchard)    ( )    by   entering 

same  without  authority  and    (removing  fruit   from  trees)    ( ), 

/18. 

BS.  Rioting   in    the   public   streets   of  .   by    (resisting   and   fighting 

against  the  peace  officers  of )  ( ), /IS. 

84.  Willfully  destroying  a  growing  crop  (of  oats)   I I  by  (permitting 

the  horses  of  his  troop  to  graze  therein    ( ),  /IS. 

85.  Unauthorized     (destruction    of)     ( )     (a    building)     ( ), 

'is. 

86.  <  Unilled  :   refers  to  Officers  only. 
CHARGE:    90  AW. 

87.  Using    a     (reproachful)     (provoking)     (reproachful    and    provoking) 

speech    agalnsl    (accompanied    with    a    provoking   gesture), 

is. 
CHARGE:   91  AW. 

88  and  89  omitted;  vU-r  to  officers  only. 

90.  Fighting  a  duel. 

91.  Promoting  n  duel.  L8. 
.CHARGE:   92  AW. 

Pi'    Murder,    killing  .   by    (shooting   him   with    a    rifle)     ( ), 

/18. 


APPENDICES.  352F 

CHARGE:  93  AW. 

i»4.  Arson,  burning  a   (dwelling  house)    ( ), /IS. 

95.  With  intent  to    (do  him  bodily  harm)    (commit  a  felony,  viz,  ) 

striking    ( )     (in)     (on)    the    with    a    , 

/18. 

96.  Burglary,  /IS. 

97.  Embezzlement  of ,  of  the  value  of  $ ,  /18. 

98.  Larceny  of ,  of  the  value  of  $ , /IS. 

99.  Manslaughter,  /IS. 

100.  Mayhem,  cutting  off  the  (hand)   (arm)   ( )  of , /IS. 

101.  Perjury,  in  a    (trial  by  court-martial  of  )    (deposition  for  use 

in    a    trial    by    conrt-martial    of    )     (military    investigation) 

(civil  suit)    ( ),  /18. 

102.  Robbery  by   (force  and  violence)    (putting  in  fear)   of  of  the 

value  of  $ (from ), /18. 

CHARGE:   94  AW. 

103.  (Making)    (causing  to  be  made  by  )    a    (false)    (fraudulent) 

(false  and  fraudulent)  claim  against  the  (U.  S.)    (Q.  M.  at ) 

( ),     in     the     amount     of    $ ,     for     (private     property 

alleged  to  have  been  [lost]  [destroyed]  in  the  military  service) 
( ), AS. 

104.  (Presenting)     (causing   to   be   presented   by   )    for    (approval) 

(payment)    (approval  and  payment)   a   (false)    (fraudulent)    (false 

and    fraudulent),   claim    against   the    (U.    S.)     (Q.    M.    at    ) 

( ),  in  the  amount  of  $ ,  for   (services  alleged  to  have 

been  rendered  to  the  U.  S.  by  )    ( ), /18. 

105.  Entering    into    an    (agreement)     (conspiracy)     (agreement    and    con- 

spiracy)   with ,  to  defraud  the  U.  S.  by    (obtaining)    (aiding 

to  obtain)  the  (allowance)  (payment)  (allowance  and  pay- 
ment) of  a  (false)  (fraudulent)  (false  and  fraudulent)  claim 
against  the  U.  S.,  in  the  amount  of  $ ,  for  (supplies)   ( ) 

alleged  to  have  been  furnished  the  U.  S.  by ,  /18. 

106.  (Making)    (using)    (making  and  using)  a  (false)    (fraudulent)    (false 

and  fraudulent)  statement  for  the  purpose  of  (obtaining)  (aiding 
others  to  obtain)  the  (approval)  (allowance)  (payment)  (approval, 
allowance,  and  payment)  of  a  claim,  against  the  (U.  S.)  .0  M. 
at )    ( ), /IS. 

107.  (Advising)    (procuring)    (advising  and  procuring)    the  making  o^   a 

(false)  (fraudulent)  (false  and  fraudulent)  statement  for  the  pur- 
pose of  (obtaining)  (aiding  others  to  obtain)  the  (approval)  (allow- 
ance) (payment)  (approval,  allowance,  and  payment)  of  a  claim 
against  the  (U.S.)  (Q.  M.  at )  ( ), /18. 

108.  (Making)     (advising    the    making    of)     (procuring    the    making    of) 

(advising  and  procuring  the  making  of)  a  false  oath  by  that 

,   for   the  purpose  of    (obtaining)    (aiding  others  to  obtain) 

the  (approval)  (allowance)  (payment)  (approval,  allowance,  and 
payment  J  of  a  claim  against  the  (U.  S.)   (Q.  M.  at )   ( ), 

/IS. 

109.  (Forging)     counterfeiting)     (forging    and    counterfeiting)     (the    sig- 

nature  of  upon  'a   )     (a    )    for   the    purpose    of 

(obtaining)  (aiding  others  to  obtain)  the  (approval)  (allowance) 
(payment)  (approval,  allowance',  ami  payment)  of  .-i  claim  against 
the  (U.  S.)   (Q.  M.  at )   ( ), /18. 


MAN  I'M.     FOR    TOT  UTS-MARTIAL.. 

CHARGE:  94  aw    Continued. 

110.  (Advising)    (procuring)    (advising    and    procuring)     the     (forging) 

(counterfeiting)    (forging  and   counterfeiting)    by   ,  of    (Hie 

lire  of  upon  a  )    (a  )  for  the  purpose  of 

(obtaining)  (aiding  others  to  obtain)  the  (approval)  (allowance) 
(payment  ((approval,  allowance,  and  payment)  of  a  claim  against 
tli.-  (U.  s.i   (Q.  M.  at )  ( ), /18. 

111.  (Using)    (advising  the   us.-  of)    (procuring  the  use  of)    a    (forged) 

(counterfeited)    (forged  and  counterfeited) for  the  purpose 

of  (obtaining)  (aiding  others  to  obtain)  the  (approval)  (allow- 
ance) (payment)  (approval,  allowance,  and  payment)  of  a  claim 
against  the  (U.  S.)   (Q.  M.  at )   ( ),  AS. 

112.  Saving     (charge)     (possession)     (custody)     (control)     of    (money) 

( )   (furnished)   (intended)   (furnished  and  Intended)   for  the 

military  service,  knowingly  (delivered)   (caused  to  be  delivered  i  to 

,    (an)     (a)     (amount)     (number)     (quantity)    less    than    the 

(am-. unt)  (number)  (quantity)  for  which  he  received  a  (certifi- 
cate)   (receipt  I.  at ,  /18. 

113.  (Making)  (delivering)  (making  and  delivering)  a  paper  certifying  the 

receipt  of  picpeny  of  the  U.  S.  (furnished)  (intended)  (furnished 
and  intended)  for  the  military  service,  without  having  full  knowl- 
edge of  the  truth  of  the  statements  therein  contained  and  with  the 
Intenl  to  defraud  the  U.  S., /IS. 

114.  (Stealing)    (embezzling)    (misappropriating)    (applying    to    his    own 

use  (applying  to  his  own  benefit)  (applying  to  his  own  use  and 
benefit)  (wrongfully  selling)  (knowingly  and  without  proper  au- 
thority selling)    (wrongfully  and  knowingly  selling)  .  

Of  the  value  of  about  .$ ,  property  of  the  U.  S.,  /18. 

116.  Wrongfully  and  knowingly  (purchasing)  (receiving  in  pledge)  from 
(in)  (employed  in)  the  military  service  for  an  (ob- 
ligation)   (indebtedness)    ,   of  the  value  of  about  $  , 

property  of  the  U.  S., A8. 

CHARGE:  95  AW. 

116  to  124  omitted;  refer  to  officers  only. 
CHARGE:    96  AW. 

11'.".   Abandoning  his  guard.      -    ■—  /18. 

126.  Kicking  a  public  (horse)  ( )  (in  the  belly)  ( ), AS. 

127.  As  (sentinel)    (overseer)    ( ).  in  charge  of  prisoners,  allowing 

a   prisoner  to   I  go  to)    (enter)    (go  to  and  enter)   an  unauthorized 

]. lace,         /iS. 

12S.  As  (sentinel)   (overseer)   ( )  In  charge  of  prisoners,  allowing  a 

prisoner    to    (hold    unauthorized    conversation    with   )     (loiter) 

(neglect  bis  tasfc  by  )   (obtain  )   ( ),  /!%. 

128.  As    (sentinel)    (overseer)    ( )    being   in   Charge  Of  prisoners,   and 

having   received   B    lawful   order   from   ,  to  require  a  prisoner 

to  .  failed  to  obey  1  he  same.  /18. 

180.  Appearing  In  civilian  clothing  without  authority, /18. 

181  Appearing  (at)    (without  his  )    (with  his  

not   buttoiie.il    (in  an   unclean  )    ( ),  /IS. 

182.  Attempting  to   (strike)    ( )  (in)    (on)   the  with 

, ,  '18. 

188.  Striking  I        — )  (in)  (on)  tin with , /18. 

184.  with  Intenl  to  evade  (duty)   ( )  feigning  (illness)   (disability) 

(Insanity)   ( ), /18. 


APPENDICES.  352H 

,  CHARGE  96  AW— Continued. 

135.  (Attempting)    (threatening)    to    (strike)    ( )    a   sentinel 

(in)   (on)  the with , /18. 

136.  (Striking)     ( )    a    sentinel    (in)     (on)    the  with 

,  /IS. 

137.  (Escaping)    (attempting  to  escape)  from  confinement, /18. 

138.  As  a  prisoner,  using  disrespectful  language  to  a  sentinel,  /18. 

139.  Having    been    restricted    to    the    limits    of    ,    did    break    same, 

/IS. 

140.  Unlawfully  carrying  a  concealed  weapon,  /IS. 

141.  (Urinating)    (defecating)    ( )    (on  the  floor  of  the  squad  room) 

,  • /18. 

142.  Willfully  did,  [ (conceal)   (remove)   (mutilate)   (obliterate)   (destroy)] 

[attempt  to  (conceal)  (remove)  (mutilate)  (obliterate)  (destroy)] 
[take  and  carry  away  with  intent  to  (conceal)  (remove)  (mutilate) 
(obliterate)  (destroy)  (steal)]  a  public  record,  viz,  (the  descriptive 
list  of )    ( ),  /18. 

143.  As  a  prisoner  conspiring  with  and  to  escape  from  con- 

finement,   /18. 

144.  Willfully  destroying ,  property  of  the  U.  S.,  value  about  $ , 

/18. 

145.  Through   carelessness,  discharging  a    (service  rifle)    ( )    in  his 

(squad  room)    (tent)    ( ),  /18. 

146.  (Failing    to    obey)     (willfully    disobeying)    orders    from    a    sentinel, 

m. 

147.  (Drunk)     (disorderly)     (drunk    and    disorderly)    in    (camp)     (post) 

(quarters)   ( ), /18. 

148.  (Drunk)    (disorderly)    (drunk  and  disorderly)  in  uniform,  /IS. 

149.  As  a  sentinel,  drinking  intoxicating  liquor  with  a  prisoner  under  his 

charge,  /18. 

150.  While  a  prisoner,  was  found  drunk,  /18. 

151.  Failing  to  obey  a  lawful  order,  /IS. 

152.  Violating  (standing  orders)    (regulations),  /18. 

153.  Wrongfully  using  a  narcotic  drug,  /18. 

154.  Failing  to  pay  a  just  debt, /IS. 

155.  Failing  to  report  for  prophylactic  treatment,  /IS. 

156.  Making  a  false  official  (report)    (statement),  — /18. 

1~>7.  False  swearing,  /18. 

158.  Forging  (in  its  entirety)  [by  (altering )   (erasing )   (add- 

ing   )]  a  certain  (check)    ( ),  /18. 

159.  As   (sergeant)    (corporal)   gambling  with  privates,  /18. 

1G0.  Gambling  in  quarters  in  violation  of  orders, /18. 

161.  Indecent  exposure,  /18. 

162.  ((Mi  behalf  of  another)   loaning  $ for (months)    (days) 

per  cent  per  (annum)  (month),  an  usurious  rate  of  interest, 
/IS. 

163.  While  ,-i  sentinel,  loitered  on  his  post, /IS. 

1G4.  Obtaining. by   false  pretenses   (from  )    (the  sum)    (merchandise 

of  the  value)  of  $ ( ),  /18. 

165.  Refusing  to   submit    to    (medical   treatment)    (dental    treatment)    (a 

Burgical  operation), /is. 

166.  Willfully  maiming  himself  (by  shooting  himself  with )  ( ), 

/18. 


352l  MANUAL    FOB    0OX7BTS-MABTIAL. 

charge:  96  AW— Continued. 

167.  While  a  sentinel,  Bitting  down  on  his  ]«'st. /18. 

168.  Sodomy  committed  upon  ,,|t'  person  of  <»no , /18. 

169.  Straggling  while  (on  practice  march)   (a1  maneuvers >, /18. 

L70.  Knowingly    procuring  to   commil    perjury,   by    Inducing   him 

knowingly   to    (give   false  testimony)    make  a   false    (declaration) 
(certificate)    (deposition)   as  i"  a  material  matter  In  a  trial    (by 

court-martial)   ( ). /18. 

iTi.  Willi  Intenl  to  defraud,  knowingly  uttering  to a  forged  (writ- 
ten instrument)   ( ), /IS. 

172.  Breach  of  parole,  while  a  prisoner, /18. 

173.  With  Intenl  to   (malm)    (disfigure)  willfully  [(cutting)    (bit- 

ing)   ( )    the    (uose)    (ear)    ( )   of  ]    [(throwing) 

(pouring)  corrosive  acid  upon]  the  said , /18. 

17  1.  Knowlnglj   receiving  stolen  goods  of  the  value  of  $ , /IS. 

.  (  .   i/..  No.  -'/.) 


APPENDIX  5. 
SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 


The  judge  advocate  of  a  general  or  special  court-martial  shall  prosecute  in 
the  name  of  the  United  States,  and  shall,  under  the  direction  of  the  court,  pre- 
pare the  record  of  its  proceedings.     (A.  W.  17.) 

The  following  notes,  indicating  more  or  less  in  proper  sequence  certain  action 
usually  proper  to  be  taken  by  a  trial  judge  advocate,  may  be  found  useful : 

I.  UPON   RECEIPT  BY  AN   OFFICER  OF  AN   ORDER  APPOINTING 
HIM  JUDGE  ADVOCATE  OF  A  COURT-MARTIAL. 

(a)  Examine  the  order  carefully  and  take  appropriate  action  to  cause  the 
correction  of  any  substantial  irregularity  therein. 

(b)  Examine  and  study  such  portions  of  the  Manual  for  Courts-Martial, 
Digest  of  Opinions  of  the  Judge  Advocates  General,  Army  Regulations,  and  War 
Department  or  other  orders  affecting  courts-martial  as  may  appear  desirable. 
He  should,  in  this  connection,  give  particular  attention  to  the  duties  of  trial 
judge  advocates,  to  the  procedure  of  courts-martial,  and  to  the  matter  of  evi- 
dence. 

2.  UPON  RECEIPT  OF  CHARGES  IN  A  CASE. 

(a)  Prepare  an  envelope  to  contain  the  papers  pertaining  thereto. 

( b )  Examine  the  charges  and  all  papers  received  to  see  that  none  appear  to 
be  missing,  that  the  charges  appear  to  be  correctly  drawn,  that  the  evidence  of 
previous  convictions  is  complete  and  correct,  especially  as  to  dates,  authentica- 
tion, proper  signatures,  etc. 

(c)  Make  authorized  necessary  changes  in  charges  and  take  proper  action 
in  connection  with  defects,  if  any,  found  in  evidence  of  previous  convictions. 

(d)  Report  to  the  appointing  authority  necessary  or  desirable  changes  which 
the  judge  advocate  is  not  authorized  to  make. 

(e)  Furnish  the  accused,  if  he  so  desires,  a  copy  of  the  charges;  and,  if  he 
desires  to  state,  ascertain  from  him  how  he  intends  to  plead. 

(/)  Ascertain  whether  accused  desires  counsel;  and  if  so,  ascertain  whether 
he  wishes  a  particular  person ;  and  if  so,  whom. 

(.'/)  Arrange  for  counsel,  if  desired  to  do  so. 

(/()  Prepare  case  for  trial,  investigating  it  thoroughly,  and  determining  upon 
plan  of  prosecution. 

(i)  Arrange  with  president  date  and  time  of  meeting  of  court. 

(j)  Arrange  for  court-martial  room,  see  that  it  is  in  order,  provided  with 
necessary  tables,  chairs.,  stationery,  and  room  to  be  heated,  if  necessary. 

(k)  Notify  all  members  of  date  and  time  of  meeting  and  arrange  for  presence 
of  other  necessary  persons,  including  the  accused  and  his  counsel,  reporter,  in- 
terpreter, if  required,  and  witnesses. 

53915°—  is 25  353 


M  ,-.      U      i  OB    I  01    BI6    *  LRTIAL. 

i/)  Arrange  i<>  have  al  trial  Bucb  books,  etc,  as  maj  be  required.    The  fol 
lowing  are  frequently  found  necessary  <>r  useful: 
Manual  tor  Courts-Martial. 

:  of  Opinions,  Judge  Advocates  General 
Standard  Text  on  Ifllltars   Law. 
Ordnance  Price  List, 
king  Price  I 
(m)   Determine  maximum  punishment,  if  any,  imposable  upon  conviction  of 
each  of  the  several  offenses  charged,  and  note  same  on  slip  for  use  of  court 
in  the  event  of  a  conviction. 

3.  UPON  THE  ASSEMBLING  OF  THE  COURT. 

(.i)  Note  officers  present  and  absent. 

|   When  court  appears  to  be  ready  to  proceed,  announce  the  readiness  of 

the  prosecution  to  proceed  with  trial  of ,  who  desires  to  introduce 

knseL  or  does  not  desire  to  introduce  counsel. 

Swear  reporter,  if  any. 

(d)  If  a  general  eourt-inartial,  ask  accused  if  he  desires  a  copy  of  the  record 
of  his  trial  If  he  does  not,  do  not  have  copy  made;  if  he  wishes  copy,  direct 
reporter  to  prepare  one. 

1 1  )  Read  aloud  to  accused  the  order  appointing  the  court  and  each  modi- 
fying order. 

i  / )  Ask  accused  if  he  objects  to  being  tried  by  any  member  present  named 
in  the  order  or  orders. 

('/>  After  action  on  challenge,  if  any  made,  has  been  had,  again  ask  the 
accused  whether  he  objects  as  above.  Continue  this  until  accused  has  no  fur- 
ther objection. 

I  h  i   Swear  members  of  court. 

(t)   Be  sworn  by  president. 

I  Read  charges  and  specifications  aloud  slowly  to  the  accused,  and,  having 
done  so,  ask  him  how  he  pleads  to  the  first  specification,  first  charge — if  neces- 
sary rereading  t<>  him  the  specification;  then  how  he  pleads  to  the  second 
specification,  first  charge,  etc. ;  then  to  the  first  charge,  etc. 

(In  If  there  be  a  plea  of  guilty,  the  president  makes  to  accused  the  required 
explanations  and  asks  him  the  required  questions. 

[I)  Bead  to  court  from  chapter  on  punitive  articles  the  gist  of  each  of  the 
several  offenses  charged. 

im)  Introduce  and  swear  witnesses  for  the  prosecution.  In  some  cases  ir 
may  be  desirable  to  acquaint  the  court  with  the  particular  specification  with 
which  the  testimony  of  a  particular  witness  is  connected. 

in)  In  all  cases  attempt  to  establish  by  evidence  each  of  the  several  speci- 
fications, except  such  elements  as  max  be  the  subjects  of  judicial  notice  or  as 

admitted. 

b  witness,  having  careful  regard   for  the  rules  of  evidence. 
i /,  >    Offer  opportunity    tO  cress-examine. 

1 7 1  Reexamine,  if  desirable. 

(/)   Ask  court   if  there  are  any  questions  by  the  court. 
(  *  )   If  any  Witness  Is  recalled,  remind  him  that  lie  is  still  under  oath. 
it)  When  I  he  prosecution  has  nothing  further  to  offer  for  the  time,  announce 
that   the  prosecution  rests. 

i  ;/ )    Swear    witnesses    lor    defense,    in    succession,    and    cross-examine    so    far 

ns  desirable 


APPENDICES.  355 

(v)  after  defense  rests,  swear  and  examine  witnesses,  if  any,  in  rebuttal 
for  prcsecution. 

(w)  If  the  accused  neither  testifies  nor  makes  a  statement,  the  president 
makes  to  him  the  required  explanation  and  asks  him  the  required  questions. 

(x)  Offer  accused  opportunity  to  make  a  statement. 

(y)  Make  closing  statement,  if  any. 

4.  ADJOURNMENT  DURING  TRIAL. 

(a)  Note  time  of  adjournment. 

(ft)  Arrange,  if  practicable,  to  have  completed  record  of  proceedings  to 
date  ready  before  next  assembling  of  court. 

(c)   Subscribe  the  record  of  proceedings  for  the  day. 

5.  FINDINGS. 

(a)  After  both  prosecution  and  defense  have  concluded,  the  court  closes  ft. 
findings,  and  in  the  case  of  a  person  not  a  soldier  to  award  sentence  upon  coi 
viction. 

(b)  Upon  conviction  of  a  soldier,  the  court  opens  for  the  purpose  of  receiv 
ing  evidence  of  previous  convictions,  if  there  be  any. 

(1)  Read  aloud  duly  authenticated  evidence  of  previous  convictions  referreo 
to  the  court  by  the  appointing  authority. 

(2)  Invite  attention  of  court  to  any  apparent  irregularity  in  the  evidence  ei 
previous  convictions. 

(3)  Ask  the  accused  whether  the  evidence  of  the  several  previous  convi. 
lions  and  the  statement  of  service  as  shown  on  the  charge  sheet  are  correct. 

(4)  Invite  the  attention  of  the  court  to  any  apparent  irregularity  in  the 
findings. 

6.  SENTENCE. 

(/i)  The  court  will  then  close  to  determine  upon  and  award  the  sentence 
(6)  After  awarding  sentence  the  court  notifies  the  judge  advocate  of  tf 
same. 

(c)  Invite  the  attention  of  the  court  to  any  apparent  irregularity  in  the  sei. 
tence. 

7.  ADJOURNMENT  AT  CLOSE  OF  TRIAL. 

(a)  After  sentence  has  been  awarded  the  court  either  proceeds  to  oth. 
business  or  adjourns. 

(b)  Note  time  of  proceeding  to  other  business  or  of  adjournment 

8.  AFTER  TRIAL. 

(a)  Complete  vouchers  for  civilian  witnesses  and  deliver  same,  if  practicabl. 
before  the  witness  leaves. 

( 6 )  Take  proper  measures  to  Insure  the  security  of  the  findings  and  senteno 
if  recorded,  and  that  they  are  not  disclosed  to  any  but  the  proper  authoriT> 

(c)  When  record  is  received  back  from  reporter: 

(1)  Examine  carefully  to  see  thai  it  is  in  proper  form,  complete,  and  correci 
as  to  both  form  and  substance. 

(2)  Make  proper  notation  on  index  sheet  as  to  copy  of  record. 

(3)  See  that  copies  of  evidence  of  previous  convictions  are  correct,  certify 
same,  and  return  originals  to  organizations. 


MANUAL    FOR  COURTS-MARTIAL. 

n  qo4  m  attached,  attach  Indi  i  Bhee4  and  all  exhibits. 

m  ///  hound. 

(./ 1  Enter  findings  and  sentence, 

r,  i  \\  findings  and  sentence  are  typewritten,  add  proper  certificate. 

(/)  Authenticate  record. 

(0)  Have  president  authenticate  record. 

Certify  original  voucher  and  Bend  LI  i<>  reporter  or  to  a  near  disbursing 
quartermaster,  and  Inclose  copy  with  record. 

in   Verity  completeness  and  correctness  of  record  by  stein-  that,  so  far  as 
In    'lie   particular  h    requirement  stated   in   Chapter   XV, 

Section  i.  paragraph  857  (o)  has  been  complied  with. 

i},    [ndorse   and    forward   charges,    accompanied   by    record   of   trial   and   all 
s,  to  the  appointing  authority. 

9.  WEEKLY  REPORT. 

Bach  Saturday  report  through  the  president  of  the  court  and  the  commanding 
ail  charges  which  have  not  been  returned  to  the  appointing  authority 
■bowing  date  of  receipt  of  cadi  and  reasons  for  delay  in  trial. 

10.  RECORD  WHICH  MAY  BE  KEPT. 

It  is  Suggested  thai    when  deemed  desirable  at  least  the  following  record  be 
kept  by  the  trial  Judge  advocate  in  each  case.    This  record  may  be  conveniently 
on   an  envelope  to  be  used   as  a  container   for  the  charges  and   various 
papers : 

•  t  receipl  by  him  of  charges  or  other  papers. 
Date  of  preliminary  consultation  by  him  with  the  accused. 
How  accused  intends  to  plead,  if  stated  by  him. 
Counsel : 

1  >esir.-dV 

If  so,  name. 

If  so,  date  <>n  which  commanding  officer  so  informed. 

Date  '  n  Which  judge  advocate  informed  of  appointment  of  counsel. 

ilt  of  examination  in  preparing  for  trial,  and  dates  and  other  necessary 
pertaining  to  each  other  incident  connected  with  the  case,  such  as  mailing 
Intern  Bubpcenalng  witnesses,  etc. 

Date  of  trial. 

Date  and  hour  record  received  back-  from  reporter. 
Date  and  Ik. iir  record  forwarded  to  appointing  authority. 
Date  of  return  to  commanding  officer  of  evidence  of  previous  convictions,  if 

I  l.i-  N  returned. 


APPENDIX  6. 


FORM    FOR    RECORD    OF   TRIAL    BY    GENERAL    COURT-MARTIAL 
AND  REVISION   PROCEEDINGS. 

Record  of  Trial  by  General  Coubt-Mabtiai,  *  of 

INDEX. 

Page. 

Arraignment 

Pleas 

Statement  by  accused . 

Address  by  counsel - 

Reply  by  judge  advocate 

Findings 

Previous  convictions  submitted 

Sentence  (or  acquittal) . 

Proceedings  in  revision 

Testimony. 


Name  of  witness. 

Direct. 

Cross. 

Redirect. 

Examina- 
tion by 
court. 

Recalled. 

Page. 

Page       '      Page. 

1 

Page. 

Page. 

Exhibits. 


Number.     £»££>£ 


Deposition  oiCapt. 
Deposition  of  Pvt.  - 
Letter  of 


fnot  desired  by  accused.2 
Carbon  copy  of  the  record   furnlshed  the  accusetl. 


1  See  "  Courts-martial,  Records  of  trial,  Cbap.  XV."  The  record  will  be  clear 
and  legible  and,  if  practicable,  without  erasure  or  Interlineation. 

Erasures  or  interlineations  will  be  authenticated  by  the  initials  of  the  judge 
advocate  or  of  the  president,  or,  in  a  proper  case,  of  the  assistant  judge 
advocate. 

The  pages  of  the  record  will  be  numbered  at  the  bottom,  and  margins  of  1 
inch  will  be  left  at  the  top,  bottom,  and  left  side  of  each  page. 

a  Line  out  inappropriate  words. 

357 


irt  martial   which  convened   at 

r-lt-r  : 

"     defoH.) 


:,t  to  the  I  l«J 

../.,,  „/  //„■  or*  r  appoint**/  the  oouri  and,  foUowtna  it, 


— t  . 



.,  the  foregoing  order  al  o'clock      .  m. 

i     valry. 

10th  Infantry. 

'  ArtlUerj  Corns. 
,  5th  Cavalry. 

\rtiller\    Corps. 

.  r.tli  Cavalry,  Judge  itdvocate 

.  -jmiIi  Infantry,  assistant  Judge  advocate. 


Opt,  tml  Artillery  Corps  (detached  servl 

,in,i  i. ,,. m.  .  iOth  infantry  i  leave  of  absence) 

ii„.  court  proceeded  to  the  trial  of  Private*  .  Company 

try,  who,  on  appearing  before  the  court,  stated  that  he  did  not  desire 
counsel  or  Introduced 

was  sworn  as  reporter. 

:.t. announced   that   he   was   the   accuser   and   was   excused    and 

withdrew. 

\i\  an  Interpretci   fa  t->  '••■  used  he  thould  be  tworn  when  /n.  ire 

1  in  the  record  of  the  ;  i  of  a  court-martial  at  its  organization  for 

,1  ..i  a  case  the  officers  detailed  aa  members,  Judge  advocate,  and 
idvocate  will  be  noted  by  name  as  present  <>r  absent.    In  the  r 

subsequent  sessions  in  the  same  case  (except  in  pn I 

following  form  of  words  will  be  used,  subject  to  suca 
modification  as  the  facts  may  require:  "Present,  ail  the  members  of  the  i 
ie.  and  the  assistant  Judge  advocate."     When  the  absei 

an  Officer  Who  has  not  qualified  <>r  Who  has  been  relieved  or  eXCUSed  as  a   mem 

I  inted  lor.  no  further  note  will  he  made  of  it. 

court-martla]  who  Knows,  or  lias  reason  to  believe,  that  in 

absent    from  a  session  ,,i-  the  COUrt,   will   inform  tlif 

when  a  member  of  a  court-martla]  is  absent 
advocate  will  cause  that  fad.  together  with  the 
known  to  him.  to  be  shown  in  the  record  o 
for  Buch  absence  is  not  known  to  the  Judge  advo- 
the  record  to  Bhow  tin-  member  as  absent,  cause  unknown. 

yjll    hot     he    (-Opted    into    'I,.'    reeord. 

:ii  number. 


APPENDICES.  859 

The  order  appointing  the  court  (and  the  order  or  orders  modifying  the  detail, 
if  any)  was  (or  were)  read  to  the  accused,  and  he  was  asked  if  he  objected 
to  being  tried  by  any  member  present  named  therein ;  to  which  he  replied  ii> 
the  negative;  or 

Defense:   {Insert  statement.) 

Captain : 

(Insert  the  statement  of  the  challenged  member,  who  ordinarily  should  re- 
spond to  the  challenge  by  briefly  admitting  or  denying  the  grounds  of  the  chat- 
lenge.  Should  the  accused,  after  the  statement,  desire  to  call  upon  the  member 
to  testify  as  to  his  competency,  the  record  should  continue:) 

The  accused  having  requested  that  the  challenged  member  be  sworn  as  to 

his  competency  to  act  as  a  member  of  the  court,  was  sworn  by  the 

Judge  advocate  and  testified  as  follows: 

The  challenged  member  withdrew,  the  court  was  closed,  and  on  being  opened 
the  president  announced  in  the  presence  of  the  accused  and  his  counsel  that 
the  challenge  was  not  sustained  or  that  the  challenge  was  sustained. 

If  the  challenge  is  sustained: then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other  member  present,  to  whicl 
he  replied  in  the  negative  or 

Defense : 

(Insert  objection  in  full,  record,  and  continue  as  before  until  accused  replies 
in  the  negative.) 

The  members  of  the  court,  the  judge  advocate,  and  the  assistant  judge  advo 
eate  were  then  sworn. 

(//  delay  is  desired,  request  should  now  be  made  and  the  proceedings  re 
corded.    If  no  continuance  is  requested,  the  record  should  continue:) 

The  accused  was  then  arraigned  upon  the  following  charges  and  specifica 
tions  :a 

Chabuk  1  :  Violation  of  the Article  of  War. 

Specification:  In  that,  etc. 

Chabge  II:  Violation  of  the  Article  of  War. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc. 

,  Capt. Infantry. 

To  which  the  accused  pleaded : 2 

To  the  specification,  Charge  I :  Guilty  or  Not  guilty. 

To  Charge  I :  Guilty  or  Not  guilty. 

To  Specification  1,  Charge  II :  Guilty  or  Not  guilty. 

To  Specification  2,  Charge  II :  Guilty  or  Not  guilty. 

To  Charge  II :  Guilty  or  Not  guilty. 

The  paragraphs  of  the  Manual  for  Courts-Martial  that  set  out  the  gist  of  each 
of  the  several  offenses  were  read  to  the  court  by  the  judge  advocate. 

'All  words  that  precede  the  charge  proper  are  not  parts  of  the  charges  and  irill 
not  t>e  copied  into  the  record,  but  the  uame,  rank,  and  organization  of  the  officer 
subscribing  the  charges  will  be  copied  into  the  record  after  the  charges  and 
specifications. 

1  In  case  the  accused  pleads  guilty  in  whole  or  in  part  to  any  charge  oi 
specification,  the  record  will  show  the  explanation  of  the  president  and  the 
reply  of  the  accused  required  by  par.  154  (d). 


MAM  A!     FOB   COURTS-MARTIAL. 

.  Company , infai.tr>.  a  witness  tor  the  prose- 

cull.,:  ■  d  and  testified  as  folkn 

know  the  a©  a»  dl    if  bo,  state  who  he  is. 

.,;  Pvt  .  Company , Infantry. 

.  Ung  questions  of  ti<>  pi  <  noers  should  follow 

\.      . 

(//  the  defense  decline*  to  cross-examine  the  witness,   the  record  should 
.• 
ii...  ,  Lned  to  cross-examine  the  witness. 

.lion: 
(». ? 

— . 


tions  by  de 
Q.  ? 


ons  by  court 

Q.  ? 

A.  . 


Prosecution:  [Insert  objection.) 
Member  :  <  Insert  reply,  etc.  i 

(//  the  accused  or  another  member  object,  the  record  would  proceed  in  a  eor- 

n<i  way.) 
The  court  was  closed,  and  on  being  opened  the  president  announced  in  the 

ice  <>f  the  accused  and  his  counsel  that  the  objection  was  sustained  or  was 

■  I  stained. 
(In   the  latter  0086   th<    record   should   continue:) 

The  question  was  then  repeated: 

A.        . 

(//  tin  <n, nt  oonHders  it  necessary  to  hear  the  testimony  of  the  witness  read 
or  the  witi.  to  have  mm  part  of  his  testimony  read  for  correction,  the 

record  fill  show  the  fact  and  the  corrections,  if  any.) 

{After  the  proper  foundation  for  the  introduction  of  a  writing  has  been  laid 
tin    ii  cord  a  ill  continue.) 

Prosecution:  "I  offer  In  evidence  the"  (Describe  the  tcriting  or  other  pro- 

pOS(  il    i  rhiliil). 

{Insert  his  reply,    if  there  Is  no  objection  the  record  will  con- 

'The  record  Bhould  set  forth  fully  all  the  testimony  introduced  upon  the  trial, 

ii  portion  as  aearl]  as  practicable  In  the  precise  words  of  the  witness,    if 

the  court  should  decide  h   strike  oul  any  part,  it  will  not  be  literally  stricken 

omitted  from  the  record,  but  will  not   lie  thereafter  considered  as  part 

■  nee. 


APPENDICES.  361 

The  paper  (or  other  proposed  exhibit)  was  then  received  in  evidence  and  is 
appended  marked  — l  (insert  the  number  of  the  exhibit). 

(If  there  is  objection  the  record  will  continue  by  stating  any  further  remarks 
of  the  prosecution.) 

The  court  was  closed,  and  on  being  opened  the  president  announced  in  the 
presence  of  the  accused  and  his  counsel  that  the  objection  was  sustained  (or 
was  not  sustained). 

(//  the  objection  is  not  sustained  the  record  xcill  continue  as  in  the  case  whert 
there  is  no  objection.  If  the  objection  is  sustained  there  will  be  no  further 
entry. ) 

(If  it  is  the  defense  that  seeks  to  introduce  the  writing,  the  record  would 
proceed  in  a  corresponding  manner.) 

(At  the  close  of  the  prosecution  the  record  should  continue.) 

Prosecution :  The  prosecution  rests. 

(If  the  court  adjourns  to  meet  another  day  the  record  should  continue.) 

The  court  then,  at o'clock  — .  m.,  adjourned  to  meet  at o'clock  — .  m, 

on . 


First  Lieutenant  5th  Cavalry,  Judge  Advocate. 

Fort  , ,  19—. 

The  court  met,  pursuant  to  adjournment,  at o'clock  — .  m. 

Present : 

All  the  members  of  the  court,  the  judge  advocate,  and  the  assistant  judge 
advocate.3 

(The  record  should  show  the  names  of  all  absentees,  including  those  absent 
at  preceding  sessions;  the  cause  of  absence  of  each  absent  member  should  ay- 
jn  ar  in  tic    record.) 
The  accused,  his  counsel,  and  the  reporter  were  also  present. 
(//  tlic  proceedings  of  the  previous  day  arc  required  to  be  read,  the  fact  will 
\rded  in  the  following  form: 

The  proceedings  of were  read  and  approved,  or  corrected,  as  follows: 

(//(  the  latter  ease  enumerate  corrections,  giving  page  and  line  en  which  they 
occur.) 

Corpl.  John  Smith,  Company  ,  Infantry,  a  witness  for  the  de- 
fense, was  sworn  and  testified  as  follows: 
Questions  by  prosecution: 
Q.  Do  you  know  the  accused?     If  so,  state  who  he  is. 

A.  . 

Questions  by  defense: 

Q.  'i 

A.  . 

(Should  the  accused  testify  in  his  oivn  behalf,  the  record  will  continue.) 

'All  documents  and  papers  made  parr  of  the  proceedings,  or  copies  of  them, 
will  be  securely  fastened  (but  not  i>ast<<!\  to  the  record,  in  the  order  of  their 
Introduction,  after  the  Bpace  left  for  the  remarks  of  the  reviewing  authority, 
and  marked  "1,"  "2,"  ".'{,"  etc.  so' as  to  afford  easy  reference.  Documents  or 
other  writings,  or  matter  excluded  by  the  court  will  not  ordinarily  he  appended 
(,.  the  record,  bnl  the  record  should  simply  specify  the  character  ..I"  the  writings 
and  the  grounds  upon  which  they  were  ruled  out. 


MAN  I    v  l-    MAW  I  \!  . 

The  i  reused,  at  bis  own  request,  was  sworn  and  testified  as  follows: 
I  tons  by  defense  : 


A. 


(//  •  no  Othi  r  nitrii  .'.s.  the  ,<c<»<l  should  continue.) 

Tin-  defense  had  no  Further  testimony  to  ..nor  and  no  statement  to  make,  or, 
hnvinu'  do  further  testimony  to  offer,  made  the  following  verbal  statement. 

ring  ii"   further  testimony   to  offer,  submitted  a   written  statement, 
which  was  road  lo  tin-  court,  ami  is  hereto  appended  ami  marked  — .' 

Or,  i   quested  until o'clock  — .  m.  to  prepare  his  defense. 

(//  the  court   take*  «   recess  during  the  time  asked  for,  the  record  will 
conthiih .  t 

The  court  thou  took  a  recess  until  o'clock  — .  m.,  at  which  hour  the 

members  <<c  the  court,  the  judge  advocate,  the  assistant  judge  advocate,  the 
.  his  counsel,  and  the  reporter,  resumed  their  seats. 

{Or,  :i  the  court  lots  other  business  before  it,  the  record  may  continue.) 

The  court   tin  a  proceeded  to  other  business,  and  at  o'clock  — .  m 

resumed  the  trial  of  this  ease,  at  which  hour,  etc. 
/    x,  ,  I  ataU  .'//<  >•/  ). 

Or,    The  defense    read    to   the   COUrl    a    statement,    which    is   hereto   appended 
and  marked  — .* 

The  prosecution:  (Insert  statement). 

Or,  The  prosecution  read  to  the  court   a  statement,  which  is  hereto  appended 
and  marked  — . 

The  court  was  dosed,  and  finds  the  accused: 

of  the  specification,  Charge  I:  Guilty  or,  Not  guilty. 

of  Charge  I:  Guilty  or  Not  guilty. 

Specification   l,  Charge  IT:  Guilty,  except  the  words  " ,"  substitut- 
ing therefor  the   tvords  "       ";  of  the  excepted  words,  "Not  guilty"  and  of 

tbstltuted  words  "  Guilty." 

of  Specification  2,  Charge  n  :  Guilty  or  Not  guilty. 

.live  II  :   Guilty  or  Not   guilty,  or  Not  guilty,  but  guilty  of  . 

i //  a  soldier  Is  found  guilty,  the  record  should  continue.) 

The  court   was  opened  ami  the  Judge  advocate  stated,  in  the  presence  of  the 
aCCUSed    and    his   counsel,    thai    he    had    no    evidence   of   previous   convictions   to 

submit. 

read  the  evidence  of previous  convictions,1  copies  of  which  are 

hereto    ppended  ami  marked  "4,"  ".">."'  etc. 

i  if  tic  it,  (ms, ■  iti/.s  liny  statement  to  make  in  regard  to  the  previous  oonvio 
statement  of  service,  it  trill  b<  recorded.) 

Th<      >ur1  was  closed,  ami  sentences  the  accused  to . 

ons,  or  accuse,/  acquitted,  i 
Th urt    sentences    the    accused.    Private  ,   Infantry, 

to —      .  etc.,  "/  acquits  the  accused. 


atement  "i  the  accused,  or  argument  in  his  defense,  and  till  pleas  to 

tli''     '      idictloi]    in   bar  of   trial   or   in   abatement,   when   in   writing,  should  be 

•    by  the  accused  himself,  referred  to  in  proceedings  as  having  been  sub 

:    bj    him,  and  appended   In  the  record. 

'When  the  proof  produced   Is  the  copy   furnished  to  the  company  or  other 
it  win  he  returned  to  him  and  a  copy  of  it  attached  to  the  record, 
if  Hie  'rial  he  h>    general   court -martial.     The  copy  should  be  bound  with  the 
record   ■  3  an  exhibit 


363 


APPENDICES. 

The  court,  at  —  m.,  was  opened  and  proceeded  to  other  business. 

Or,  adjourned  until  —  m„  the instant. 

Or.  adjourned  to  meet  at  the  call  of  the  president. 

Major,  5th  Cavalry,  President. 


First  Lieutenant,  5th  Cavalry,  Judge  Advocate.    . 

(At  least  tiro  blank  sheets  toill  be  inserted  after  the  adjournment  md  before 
the  exhibits  for  the  decision  and  orders  of  the  reviewing  authority.) 

BINDING    AND    BRIEF. 

{The  papers  forming  the  complete  record  will  be  securely  bound  together  at 
the  top  (easily  removed  clips  or  paper  fasteners  will  not  be  used)  and  the 
record  folded  in  four  folds  and  briefed  on  the  first  fold,  as  follows: 


Private,  Company , Infantry. 

Trial  by  general  court-martial. 


Form  for  Revision  of  Record.2 

Fort 


i&— . 


The  court  reconrened  at o'clock  — .  m.,  pursuant  to  the  following  in- 
dorsement : 

(Insert  copy  of  indorsement.) 


Maj.  ,  5th  Cavalry. 

Capt.  ,  Medical  Corps. 

First  Lieut.  ,  10th  Infantry. 

First  Lieut  ,  5th  Cavalry. 

Second  Lieut.  ,  Coast  Artillery  Corps. 

First  Lieut.  ,  5th  Cavalry,  judge  advocate. 

Second  Lieut.  ,  29th  Infantry,  assistant  judge  advocate. 


(Insert  names  of  absentees  and  state  cause  of  absence,  if  known.) 
The  judge  advocate  read  to  the  court  the  foregoing  indorsement  of  the  con- 
vening authority.* 

1  In  case  of  the  death,  disability,  or  absence  of  the  judge  advocate.  Bee 
A.  W.  33.  When  the  judge  advocate  records  the  findings  and  sentence  by  tb> 
use  of  a  typewriting  medium  he  will  certify  immediately  after  the  authentic;, 
tion  of  the  record  as  follows:  il  I  certify  that  I  recorded  the  findings  and  Bei 
tence  of  the  court."  When  the  record  is  completed  the  judge  advocate  will  for 
ward  it  without  delay  to  the  appointing  authority  as  an  inclosure  to  the  In- 
dorsement <>f  the  Judge  advocate,  returning  the  original  charges. 

J  See  "  Record  of  revision,"  par.  357,  ante.  The  court  is  usually  reconvened  by 
Indorsement  on  the  charges  returning  them  to  the  president  of  the  court  with 
the  directions  of  the  appointing  authority. 

■The  record  should  show  the  name  of  each  member  of  the  court  present  dur- 
ing the  proceedings  in  revision. 

4 The  judge  advocate  will  also  read  any  other  indorsements  that  may  be  con-  j 
nected  with  the  proceedings  in  revision. 

'Inserl   name  and  Army  serial   number. 


mamai     |  OB   •  "i  B  CB  M  \r:i  iAL. 

■  urt   was  dosed  and   revokes   Ita   former  findings  and   sentence,   and 
tm. is  the  accue  id,  <  tc 
ur,  !■•                                                                  the  accnsed 
; fully  adheres  to  its  former  findlo  -  and  sento 
menda  the  record  by,  etc' 
The  Ued  and  the  conrt  at .  m.. 


Major,  5th  Cavalry,  President. 


■'<  nant,  6th  Cavalry,  J  ate. 

■  uoitt  b(  appended  to  the  original  proceedings,  folloio- 
tng  tin  in  immediately,  before  the  exhibits,  and  roill  be  forwarded  by  indorse- 
on  tit<  charges  i<>  the  appointing  authority.)     {O.  M.  C.   '' 


1  See  par.  3G4. 


APPENDIX  7. 

FORM  FOR  RECORD  OF  TRIAL  BY  A  SPECIAL  COURT-MARTIAL. 

Proceedings  of  a  special  court-martial  which  convened  at  ,  pursuant 

to  the  following  order: 

|  Here  insert  a  literal  copy  of  the  order  appointing  the  court  and,  following 
it.  copies  of  any  orders  modifying  the  detail.] 

Fort , 

,  19—. 

The  court  met  pursuant  to  the  foregoing  order  at  —  o'clock,  —  in. 


Mnj.  ,  5th  Cavalry. 

Capt.  ,  1st  Field  Artillery. 

Capt.  ,  Medical  Corps. 

First  Lieut. ,  10th  Infantry. 

First  Lieut.  ,  5th  Cavalry. 

Second  Lieut. ,  29th  Cavalry,  judge  advocate. 


Capt.  ,  Coast  Artillery  Corps. 

The  court  proceeded  to  the  trial  of  Private3  —    — ,  Company 


Infantry,  who,  on  appearing  before  the  court4  (stated  that,  he  did  not  desire 
counsel)    (introduced as  counsel). 

( was  sworn  as  reporter.)5 

(Capt. ,  because  ineligible,  was  excused  and  withdrew.) 

(First  Lieut.  was,  upon  challenge,  excused  and  withdrew.) 

The  accused  stated  that  he  had  no  objection  to  trial  by  any  member  (remain- 
ing ')  present. 

The  members  of  the  court  and  the  judge  advocate  were  sworn. 

The  accused  was  arranged  upon  the  following  charges  and  specifications: 

Charge  I:  Violation  of  the Article  of  War. 

Specification:  In  that,  etc. 

Chajbge  II:  Violation  of  the  Article  of  War. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc. 


Captain,  Infantry. 


1  In  the  record  of  the  proceedings  of  a  court-martial  at  its  organization  for 
the  trial  of  a  case  the  officers  detailed  as  members  ami  judge  advocate  will  be 
noted  by  name  as  present  or  absent. 

"Statement  of  neither  reason  nor  authority  for  the  absence  is  required. 

'Insert  name  and  Army  serial  number. 

4  Words  inclosed  In  parentheses  will  In  a  proper  case  be  omitted. 

6  A  judge  advocate  of  a  special  COUrl  may.  when  authorized  h.v  the  appointing 
authority,  employ  a  stenographic  reporter,  to  be  paid  at  the  rates  lixed  in  par- 
agraph 113. 

365 


fUAL    KOR    COl   R1  S-MAB  n  vi 


To  all  tin'  -!  ■  ■  Lficatioue  aud  •  I  . 

cifleatlon,  <  'barge  I  : 

i . 

Specification  l,  Charge  1 1  :       . 

i     Specification  !    •  II:       . 

II:   . 

following-named  persons  were  Bworn  and  testified: 
i  .     —     infantry. 

Infantry 

IM.  ,  Infantry. 

fiven  full  opportunity  to  examine  each  witness 
of  the  following-named  persons  were  received  in  evidence 
:m<i  are  hereto  appended,  marked  — ,  — ,  — .) 
The  accused  (al  bis  own  request  was -worn  ami  testified)   (made  a  statement 
ourl  >• 

accused  stated  thai  he  had  nothing  further  to  offer. 
The  court  was  closed  and  finds  the  accused  : 

Of  .ill  specifications  and  charges:  * 

Of  ilif  Spe<   Hcations,  Charge  I:  . 

0    Charge  I: . 

Of  Specification  1,  Charge  II:  . 

Specification  •_*.  Charge  II:  . 

Of  Charge  n  :  . 

(The  <'<>uri  therefore  acquits  him.) 

The  court  was  opened  and  the  judge  advocate,  in  the  presence  of  the  accused 
(and  his  counsel)    (staled  that  he  had  no  evidence  of  previous  convictions  to 

submit  I    (read  the  evidence  <>!'  previous  convictions). 

■  COUrl   was  closed  and  sentences  the  accused  to  . ) 

opened  and  (proceeded  to  other  business)   (adjourned).' 


Major,      -        I n I'm) try.  President. 


First  1. 1<  utenant,  Infantry,  .in<i</r  Advocate 

red,  ,19 


Colonel,      -  -     Infantry,  Commanding. 


pica  is  made,  the  record  will  set  out  In  full  the  proceedings  had 
•a.    Including   all    testimony    taken    thereon    ami    statements   made    relative 

i    e  disposition  thereof  made  by  the  court 
bis  or  -miliar  language  will  be  used  when  the  pleas  to  all  the  specifications 
ami  charges  I    •    lame. 

iction  when  the  accused  pleads  guilty  in  whole  or  In  part  and  evidence 
>.ied.  Bee  par.  154  (d). 

'This  or  similar  language  will  be  used   when  the  findings  of  the  court   on  all 
eclfleatlons  and  charges  are  the  same. 

!>  of  the  record  will  be  made,     it  will  nol  be  indexed,  will  be 
bri<   ed  as  is  it  general  court  martial  record,  and  will  be  securely  bound.     [0.  M. 
No.    /.• 


APPENDIX  8. 

FORM  FOR  RECORD  OF  TRIAL  BY  SUMMARY  COURT. 
Charge  sheet.  Number 


(Place.)  (Date.) 


(In  summary  court  record. ) 
-,  19 . 


(Surname.)  (Christian  name.)  (Number.)         (Grade.) 

(Company  and  regiment,  or  corps,  or  department.) 
Date  of  current  enlistment,  ,  19 — ;  age  at  enlist- 
ment. — —  years  months. 

Rate  of  pay,  $ .     Class  A  allotment,  $ per  month.     Class  B 

allotment,  $ per  month. 


Allotment  for  insurance  premium,  $ per  month.     Liberty  loan  allot- 
ments, $ per  month. 

Prior   service,   

(Give  dates,  with  character  given  on  each  discharge.) 


Number  of  previous  convictions,  . 

Date  of  arrest,  ,  19 — ,  or  confinement,  ,   19 — . 

Place  where  accused  is  now  in  arrest  or  confinement,  ■ . 

Witnesses : 

First  Sergt.  ,  Company  .  Infantry. 

Private ,  Company  ,  Infantry. 

Charge  I :  Violation  of  the Article  of  War. 

Specification:  In  that,  etc. 

Charge  II:  Violation  of  the Article  of  War. 

Specification  1:  In  that,  etc. 
Specification  2:  In  that,  etc. 

[1st    Ind.] 
Headquarters  ,  ,  19 — .     To  Capt.  .  Infantry.   Sum- 
mary Court,  for  trial. 

By  order  of  Col.  . 


Captain, Infantry,  Adjutant. 

Findings:  (If  the  findings  as  to  all  the  specifications  and  charges  arc  the 
.sunn,  a  single  proper  entry,  such  as  "Guilty,"  or  "Not  guilty,"  trill  be  made. 
If  necessary,  however,  m  order  to  show  the  facts,  detailed  entries  will  be 
made.  I 

Sentence:  . 


Captain,  Infantry,  Summary  Court. 

Approved,  .  19 — . 


Colonel,  Infantry,  Commanding. 

(C.   1/.  C.   V/.,  No.  >t.) 

367 


APPENDIX  9. 
FORMS  FOR  SENTENCES. 


(For  forms  for  action  by  reviewing  authority  on  sentences  by  courts-martiala 
see  Appendix  10.) 

A  sentence  adjudged  by  a  court-martial  will,  in  a  proper  case,  be  expressed 
substantially  in  one  or  another  of  the  forms  following.  When  desirable,  in  a 
proper  case,  two  or  more  of  the  forms  may  be  combined. 

1.  To  have  his  pay  for days  detained. 

2.  To  have  two-thirds  (or  other  fraction)   of  his  pay  per  month  for  

months  detained. 

3.  To  forfeit  days'  pay. 

4.  To  forfeit  two-thirds  (or  other  fraction)  of  his  pay  per  month  for 

months. 

5.  To  perform  hard  labor  for days  (or  months). 

6.  To  be  confined  at  hard  labor  for days  (or  months). 

7.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 
direct,  for days  (or  months  or  years). 

8.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 

direct,  for months  and  to  forfeit  two-thirds  (or  other  fraction)  of  his  pay 

per  month  for  a  like  period. 

9.  To  be  dishonorably  discharged  the  service  and  to  forfeit  all  pay  and  allow- 
ances due  or  to  become  due. 

10.  To  be  dishonorably  discharged  the  service,  to  forfeit  all  pay  and  allowances 
due  or  to  become  due,  and  to  be  confined  at  hard  labor,  at  such  place  as  the 

reviewing  authority  may  direct,  for days  (or  months  or  yeors).     (C.  II. 

C.  M.,  No.  1.) 

11.  To  be  reduced  to  the  ranks. 

12.  To  vacate  all  rights  and  privileges  arising  from  his  certificate  of  eligibility. 

13.  To  be  admonished. 

14.  To  be  reprimanded. 

15.  To  be  restricted  to  the  limits  of  his  post   (or  other  place)   for  — 

months. 

16.  To  be  suspended  from  duty  for months. 

17.  To  be  suspended  from  command  for  months. 

18.  To  be  suspended  from  rank  for months. 

19.  To  be  reduced  in  rank files. 

20.  To  be  reduced  in  rank  so  that  his  name  shall  appear  in  the  lineal  list  of 
officers  of  his  arm  next  below  that  of . 

21.  To  be  dismissed  the  service. 

22.  To  pay  to  the  United  States  a  fine  of dollars  and  to  be  confined  at 

hard  labor,  at  such  place  as  the  reviewing  authority  may  direct,  until  said  fine 
is  so  paid,  but  for  not  more  than months  (or  years). 

r,.o,01 .")  °— 1 8 26  369 


MANUAL   FOR   COURTS-MARTIAL. 

to  the  United  States  a  fine  of dollars,  to  be  confined  at  bait 

labor,  at  such  place  as  the  reviewing  authority  may  direct,  for mo 

;in,i  to  be  further  confined  al  hard  labor  until  said  fine  Is  so  paio 

„•   do!   more  than  months    (or  years),   in  addition  to  the 

months  (or  years)  hereinbefore  adjudged. 

tinned  at  hard  labor,  at  such  place  as  the  reviewing  author 
direct,  tor  the  term  of  his  natural  life. 
.  o  be  abot  to  death  with  musketry. 
.  j  by  the  neck  until  dead. 


APPENDIX  9a. 

FORMS  FOR  SYNOPSES  OF  SENTENCES. 

I  For  entry  in  service  record.  J 
INSTRUCTIONS. 

The  forms  for  recording  the  synopses  of  sentences  adjudged  by  court-martial, 
as  set  forth  below,  constitute  a  general  guide  for  use  in  entering  the  sentences 
on  the  service  record,  the  entries  being  made  in  the  following  sequence  in 
each  case: 

(o)Seutence  as  appro  veil ;  (b)   date  of  approval  of  sentence. 

(These  forms  cover  the  forms  for  sentences  given  on  pages  369  and  370.) 

1.  Pay  for  10  days  detained, /18. 

2.  §  pay  per  mo.  for  2  inos.  detained,  /18. 

3.  Forfeit  10  days'  pay,  /18. 

4.  Forfeit  §  pay  per  mo.  for  2  mos.,  /18. 

5.  Hard  labor  for  5  days,  /18. 

6.  Confmt.  10  days,  /18. 

7.  Confmt.  2  mos.,  /18. 

8.  Confmt.  2  mos.    Forfeit  §  pay  for  like  period. 

9.  Dishon.   disch.,   /18. 

10.  Dishon.  disch.  conf.  6  mos.,  /18. 

11.  Reduced,  /18. 

12.  Loss  of  privileges  of  certificate  of  eligibility, /18. 

13  and  14  omitted ;  refer  to  officers  only. 

15.  Restricted  to  limits  of  post  for  6  mos.,  /18. 

16  to  24  omitted ;  refer  to  officers  only. 

25.  To  be  shot,  /IS. 

26.  To  be  hanged, /18. 

(C.  M.  C.  M.,  No.  J,.) 


APPENDIX  10. 
FORMS  FOR  ACTION  BY  REVIEWING  AUTHORITY. 


(For  forms  for  sentences  see  Appendix  9.) 

The  following  forms  will  serve  as  a  general  guide  for  reviewing  authorities 
in  recording,  in  cases  in  which  such  forms  are  appropriate,  their  action  on 
sentences  imposed  by  courts-martial.  In  a  proper  case  the  substance  of  twc 
or  more  of  the  forms  may  be  combined.  Likewise,  the  action  as  recorded  may 
contain  proper  matter  additional  to  that  set  out  in  any  of  the  several  forms. 

A.  FORMS  FOR  ORIGINAL  ACTION. 

1     Approved   (or  disapproved)  ,  191 — . 


Colonel 


—  Infantry,  Commanding. 
Headquarters  , ,  191 — . 


Approved  (or  disapproved). 


Colonel, 
3     Approved  and  suspended ,  191 — 

Colonel, 


Infantry,  Commanding. 


—  Infantry,  Commanding. 
4     Approved,  and  forfeiture  (or  confinement)  suspended,  ,  191 — . 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191- 


In  the  foregoing  case  of  — 
executed  (or  is  disapproved). 


In  the  foregoing  case  of 


the  sentence  is  approved  and  will  be  duly 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191- 


-  the  sentence  is  approved,  but  owing  to  the 

length  of  time  the  accused  has  been  in  confinement days  (or  months)  of 

the  confinement  imposed  are  remitted.     As  thus  modified  the  sentence  will  be 
duly  executed. 


Colonel, 


Infantry,  Commanding. 


Headquarters 


191- 


In  the  foregoing  case  of  — 
II,  are  disapproved.    The  sentence  is  approved  :m<l  \v 


the  findings  of  Specifications  1  and  2,  Charge 
be  duly  executed. 


Colonel, 


Infantry,   Commanding. 
371 


M  I  \  i     \ 

s  Headqaartera , ,  191 — . 

in   the  I  only  bo  much  of  the  findings  of  guilt] 

..lie n  of  Charge  1  and  of  Charge  I  as  involves  a  finding  of  guilty 

ace  without  leave  from  i<> — .  terminated  by  apprehension 

(«./•  surrender)   is  approved.     Only  so  mucb  of  the  sentence  as  provides  for 
is  approved  ami  will  be  dulj  executed. 


Colonel,  Infantry,  Commanding 

Beadquarters , ,  191 — . 

in  tin-  foregoing  case  of the  sentence  is  approved,  but  the  execution 

thereof  Is  suspended. 


Colonel,  Infantry,  Commanding. 

l"  Headquarters  , ,  191 — . 

in  the  foregoing  case  <»f  the  sentence  is  approved  but  the  execution 

thereof,  In  so  far  as  it  relates  t'>  forfeiture  of  pay    {or  to  confinement)   is 
suspended 


Colonel,  Infantry,  Commanding. 

ii  Headquarters  -  ,  191 — . 

in  the  foregoing  case  of  the  sentence  is  approved  and  will  be  duly 

ted  I'm  the  execution  of  that  portion  i hereof  adjudging  dishonorable  dis 

charge  is  suspended   until  the  soldier's  release  from  confinement.    is 

designated  as  the  place  of  confinement. 


Colonel,  Infantry,   Commanding. 

L2  Headquarters , ,  191—. 

in  the  foregoing  case  of  the  sentence  Is  approved  and  will  be  duly 

mated  as  the  place  of  confinement. 


Colonel,  Infantry,  Commanding. 

IS  Headquarters  ,  ,  191 — . 

In  the  foregoing  ease  of it  appears  from  the  record  of  trial  that  the 

officer  who  had  subscribed  the  charges  participated  as  a  member  of  the  courl  In 
the  findings  and  sentence     As  such  officer  Is  prima  fade  the  accuser  in  thi 

case,  and  as  the  r. rd  of  trial  contains  nothing  to  Indicate  that  the  court 

upon  Investigation  arrived  ;it  a  finding  thai   be  was  not  in  fact  such  accuser, 
the  proceedings  are.  in  view  of  the  provisions  of  the  article  of  war 


Colonel,  Infantry,  Commanding. 

ii  Headquarters ,  ,  191—. 

in  the  foregoing  case  of it  appears  from  the  record  of  trial  that  an 

officer  wim  testified  as  &  witness  for  the  prosecution  participated  as  a  member 
of  the  court  in  the  findings  and  sentence  in  view  of  the  provisions  of  the 
article  of  war  the  proceedings  are  invalid. 


infinity)/.  Commanding. 


APPENDICES.  373 

15  Headquarters , — ,  191—.    To . 

In  the  foregoing  case  of  the  sentence  is  approved  and  the  record  of 

trial  is  forwarded  for  action  under  the  forty-eighth  article  of  war. 


Colonel,  Infantry,  Commanding. 

16       Headquarters  ,  ,  191 — .     To  the  Judge  Advocate  General 

of  the  Army. 

In  the  foregoing  case  of  the  sentence  is  approved,  but  the  execution 

thereof  is  suspended  until  the  pleasure  of  the  President  be  known,  and  the 
record  of  trial  is  forwarded  for  action  under  the  fifty-first  article  of  war. 


Colonel,  Infantry,  Commanding. 

17  Headquarters ,  ,  191 — . 

In  the  foregoing  case  of  the  sentence  is  approved  and  will  be  duly 

executed  at  on  ,  191 — ,  under  the  direction  of  the  commanding 


Colonel,  Infantry,  Commanding. 

18  Headquarters , ,  191 — . 

In   the   foregoing  case  the  sentence  is  confirmed   and   will   be  duly 

executed  at  on  .  191 — ,  under  the  direction  of  the  commanding 


Colonel,  Infantry,  Commanding. 

B.  FORMS  FOR  ORDERS  VACATING  SUSPENSIONS. 

Headquarters , ,  191 — . 

1     So  much  of  the  order  published  in  Court-Martial  Order  No.  — , 

,  191 — ,  these  headquarters, ,  191 —  (or  found  in  a  record  of  trial 

by  summary  court  approved  ,  191 — ),  as  suspends  execution  of  sentence 

in  the  case  of is  vacated  and  said  sentence  will  be  carried  into  execution. 

By  order  of  Col.  . 


Adjutant. 


Headquarters , ,  191 — . 

_'     So  much  of  the  order  published  in  Court-Martial  Order  No.  — , 

,  191 — ,  these  headquarters, ,  191 —  (or  found  in  a  record  of  trial 

l>y  summary  court  approved ,  191 — ),  as  suspends  execution  of  sentence 

to  confinement  (or  forfeiture  of  pay)  in  the  case  of is  vacated  and  that 

part  of  said  sentence  will  be  carried  into  execution. 

By  order  of  Col.  . 

,  Adjutant. 

Headquarters , ,  191 — . 

3  So  much  of  the  order  published  in  General  Court-Martial  Order  No.  — , 
,  191 — ,  these  headquarters,  as  suspends  execution  of  sentence  to  dis- 
honorable discharge  in  the  case  of  is  vacated  and  that  part  of  said 

sentence  will  be  carried  into  execution. 

By  order  of  Col. . 

,  Adjutant. 


APPENDIX  11. 
COURT-MARTIAL  ORDERS. 


A.  FORM  FOR  GENERAL  COURT-MARTIAL  ORDER. 

General  Court-Martial, 
Order  No.  447. 

Headquarters  Eastern  Department, 
Governors  Island,  N.  Y.,  July  21,  1919. 

Before  a  general  court-martial  which  convened  at  Fort  Hamilton,  N.  Y.„ 
pursuant  to  paragraph  6,  Special  Orders,  No.  93,  Headquarters  Eastern  De- 
partment, April  24,  1919,1  as  modified  by  paragraph  7,  Special  Orders,  No.  101, 
Headquarters  Eastern  Department,  May  26,  1919,  was  arraigned  and  tried : 

Private  John  Doe,  1,682,364,  Company  F,  29th  Infantry. 

Charge  I :  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  desert  the  service  of  the  United 
States  and  did  remain  absent  in  desertion  until  he  was  apprehended  at  Brook- 
lyn, N.  Y.,  on  or  about  June  30,  1919. 

Charge  II :  Violation  of  the  84th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y.,  on  or  about  March  27  1917,  through  neglect,  lose  one  overcoat, 
olive  drab,  value  $14.84,  and  one  blanket,  light  weight,  value  $3.79,  issued  for 
use  in  the  military  service. 

PLEAS. 

To  the  specification,  Charge  I :  "  Not  guilty." 

To  Charge  I :  "  Not  guilty." 

To  the  specification,  Charge  II :  "  Not  guilty." 

To  Charge  II :  "  Not  guilty." 

Or 

To  all  the  specifications  and  charges :  "  Not  guilty.** 

FINDINGS. 

Of  the  specification,  Charge  I :  "  Guilty."  * 

Of  Charge  I :  "  Guilty." 

Of  the  specification,  Charge  II :  "  Guilty." 


The  orders  appointing  the  court  and  all   orders  modifying  the  convening 
order  will  be  cited. 

1  Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications,  or  ia 
found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 

If  a  special  plea  has  been  made  and  sustained  by  the  court,  the  wording 
will  be :  "  Plea  in ( )  sustained  by  the  court." 

375 


87G  MANUAL    FOB  COURTS-MARTIAL. 

Of  Charge  II:  "Guilty." 

Or 

Of  nil  the  specifications  and  charges:  "Guilty."' 

BENT! 

To  bt  dishonorably  discharge*  the  service ;  to  forfeit  all  pay  and  .alloicances 
ilur,  or  to  beoonu  >iuc;  and  to  be  confined  <it  hum  labor  at  such  place  as  the 
reviewing  authority  may  direct  for  t>n>  years.  (Four  previous  convictions 
consldi 

The  sentence  Is  : 1 1 »i »««»>■*-«  1  and  will  be  duly  executed.  The  United  States  Dis- 
ciplinary  Barracks  Is  designated  as  the  place  of  confinement 

By  command  of ■. 


Colonel,  General  Staff,  Chief  of  Staff. 
Offlciul: 


Adjutant  General,  Adjutant. 
I  I  .  .1/.  0.  M.,  No.  1.) 

B.  FORM  FOR  SPECIAL  COURT-MARTIAL  ORDER. 

Special  Court-Martial 
Order  No.  43. 

Headquarters  Fort  Jay,  N.  Y.,  July  27,  1919. 

Before  a  special  court-martial  which  convened  at  Fort  Jay,  N.  Y.,  pursuant 
to  paragraph  6,  Special  Orders,  No.  93,  these  headquarters,  April  24,  1919,  as 
modified  by  paragraph  7,  Special  Orders,  No.  101,  these  headquarters,  May  26, 
1919,  was  arraigned  and  tried: 

Private  John  I 1,682,364,  Company  F.  29th  Infantry. 

Charge  I:   Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fort  Jay,  N.  Y..  on  or  about  March  27,  1917,  desert  the  service  of  the  United 
States  and  did  remain  absent  In  desertion  until  he  was  apprehended  at  Brook- 
lyn, N.  Y.,  on  or  about  June  30,  1919. 

Charge  II:  Violation  of  the  84th  Article  of  War. 

Iflcation:  In  that  Private  John  Doe,  Company  F,  29th  Infantry,  did  at 
Fori  Jay,  N.  Y.,  on  or  about  March  27,  1917,  through  neglect,  lose  one  overcoat, 
olive  drab,  value  $14.84,  and  one  blanket,  light  weight,  value  $3.29,  issued  for 
use  in  the  military  service. 


To  the  specification,  Charge  I :  "  Not  guilty." 

To  i  '    rge  I  :   '  Not  guilty." 

To  the  specification,  Charge  n  :  "  Not  guilty." 

To  <  lharge  II  :  "  Not  guilty." 

Or 

the  specifications  and  charges:  "Nol  guilty. 


'Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications  or 
is  found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 

•if  a  special  plea  has  been  made  and  sustained  by  the  court,  the  wording  will 
be:  "  Plea  in ( )  sustained  by  the  court." 


APPENDICES.  377 

FINDINGS. 

Of  the  specification,  Charge  I:  "Guilty."1 

Of  Charge  I :  "  Guilty." 

Of  the  specification,  Charge  II :  "  Guilty." 

Of  Charge  II:  "Guilty.-' 

Or 

Of  all  the  specifications  and  charges:  "Guilty."1 

SENTKNC'K. 

To  be  confined  at  hard  labor  for  six  months  and  to  forfeit  two-thirds  of  hif 
pay  per  month  for  a  like  period.     (Two  previous  convictions  considered.) 
The  sentence  is  approved. 

By  order  of . 

Official :  , 

— ,  Adjutant. 


Adjutant. 


1  If  a  special  plea  has  been  made  and  sustained  by  the  court,  the  wording  will 
be:  "  Plea  in ( )  sustained  by  the  court." 

"Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications  or 
is  found  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated. 

(P.  M.  c  M..  Vo.  >,.) 


APPENDIX  12. 
INTERROGATORIES  AND  DEPOSITION. 


To  be  read  in  evidence  before  a  * ,  United  States  Army,  appointed  to 

meet  at ,  by  paragraph  — ,  Special  Orders,  No.  — ,  Headquarters  , 

i ,  191 — ,  in  the  case  of  (in  the  matter  of )' . 


-,  191—.     To 


Please  cause  to  be  taken  on  the  interrogatories  herein  contained  the  deposi- 
tion of ,  to  be  found  at . 


Headquarters ,  191 — .     To 


who  will  take  or  cause  to  be  taken  *  the  deposition  of  the  person  named  above 
on  the  interrogatories  herein  contained.8 

By of : 

,  Adjutant. 


First  interrogatory:  Are  you  in  the  military  service  of  the  United  States? 
If  so,  what  is  your  full  name,  rank,  organization  and  station?  If  not,  what  is 
your  full  name,  occupation  and  residence? 

Answer  : 9  . 


Second  interrogatory :  . 

Answer :  . 

First  cross-interrogatory :  . 

Answer :  . 

First  interrogatory  by  the : 

Answer :  . 

(Witness  sign  here) . 

1  certify  that  the  above  deposition  was  duly  taken  by  me,  and  that  the  above- 
named  witness,  having  been  first  duly  sworn  by  me,  gave  the  foregoing  answers 

General  (or  special  or  summary)  court-martial,  or  military  commission,  or 
court  of  inquiry,  or  military  board. 

2  Name,  rank,  and  organization  of  the  accused,  or  other  proper  words  identify- 
ing the  particular  matter  in  which  the  deposition  is  desired  to  be  used. 

•To  be  subscribed  by  the  trial  judge  advocate  or  other  proper  person  with 
his  name,  rank,  organization,  and  official  title,  as  "  judge  advocate,"  "  summary 
court,"  "  recorder,"  etc. 

*  Strike  out  word  or  words  not  used. 

8  If  it  is  desired  to  give  special  instructions,  or  if  a  travel  order  is  necessary, 
the  remaining  space  will  be  used  for  the  purpose. 

"If  the  spaces  for  answers  are  not  sufficient,  extra  sheets  may  be  inserted  by 
the  officer  taking  the  deposition.  In  such  case  he  will  rewrite  the  Interroga- 
tories, writing  the  answers  immediately  below  the  respective  interrogatories. 

379 


380  MANUAL    FOR    OOT7BTS-MABTIAL. 

to  the  several  Interrogatories,  and  thai  he  subscribed  the  foregoing  deposition 

in  my  presence  al  — - — ,  this day  of ,  191 — . 

(  Name) , 

(Bank  and  organization) . 


(Official  character,  as  "summary  court,"  "officer  designated  to  take  the  depo- 
sit inn."  "  notary  public,"  etc. ) 

[hack.] 

Instructions. 

1.  Interrogatories,  how  submitted. —  («>  The  imrty  desiring  the  deposition 
Bubmits  to  the  opposite  party  the  Interrogatories  which  he  wishes  propounded 
to  tin-  person  whose  deposition  he  desires,  and  the  opposite  party  then  submits 
to  him    such   croSS-lnterrogatorles,   if  any.   as   he   may   desire.      Such   additional 

direct  and  cross  interrogatories  may  be  submitted  as  desired;  or 

(b)  The  party  desiring  the  deposition  submits  to  the  court,  military  commls 
sion.  or  board  the  Interrogatories  which  he  wishes  propounded  to  the  person 
whose  deposition  he  desires.  The  opposite  party  then  submits  to  the  court, 
military  commission,  or  board  such  cross-interrogatories,  if  any,  as  he  may 
desire.  The  court,  military  commission,  or  board  then  submits  such  additional 
interrogatories  as  they  may  deem  proper  and  desirable,  and  such  additional 
direct  and  cross  interrogatories  may  be  submitted  as  are  desired ;  or 

(e)  Where  the  court,  military  commission,  or  hoard  desires  that  the  depo- 
sition of  a  particular  person  be  obtained  it  will  cause  interrogatories  to  be 
prepared  accordingly.  The  prosecution  and  defense  (or  other  party  or  parties 
in  interest)  then  submit  such  interrogatories  as  they  may  desire.  Such  addi- 
tional Interrogatories  may  be  included  as  are  desired  by  the  court,  military 
commission,  or  board,  or  by  a  party  in  Interest.      I  M.  C.  M.  par.  176.) 

2.  Procedure  to  obtain  deposition. —  (a)  All  the  interrogatories  to  be  pro- 
pounded to  the  person  are  entered  upon  the  form  for  interrogatories  and 
deposition,  and  the  trial  .indue  advocate,  summary  court,  or  recorder  will  take 
appropriate  steps  to  cause  the  desired  deposition  to  be  taken  with  the  least 
practicable  delay.  In  the  ordinary  case  he  will  either  send  the  interrogatories 
to  the  commanding  officer  of  the  post,  recruiting  station,  or  other  military  com- 
mand  at  or  nearest  which  the  person  whose  deposition  is  desired  is  stationed, 
resides,  or  is  understood  to  be,  or  will  send  them  to  some  other  responsible 
person,  preferably  a  person  competent  to  administer  oaths,  at  or  near  the  place 
at  Which  the  person  whose  deposition  is  desired  is  understood  to  be.  In  a 
proper  case  the  Interrogatories  may  be  sent  to  the  department  or  other  superior 
commander,  OT  to  the  witness  himself,  and  in  any  case  they  will,  when  neces- 
sary, be  accompanied  by  a  proper  explanatory  letter. 

(b)  When    Interrogatories   are   received   by   a    commanding   officer  he   will 

either  take  or  cause  to  be  taken  the  deposition  thereon.  He  may  send  an  In- 
telligent enlisted  man-  preferably  a  noncommissioned  officer,  if  available — to 
the  uecessarj    pace  tor  the  purpose  of  obtaining  the  deposition,  or  he  may 

properly  arrange  by  mail  or  otherwise  that  the  deposition  be  taken.  The  dep 
ositi'.n  will  be  taken  with  the  least  practicable  delay,  and  when  taken  will  be 
sent  al  once  direct  to  tin-  Judge  advocate  of  the  court-martial  trying  the  case,  or 
other  proper  person, 

(C)  If  the  witness  whose  deposition  is  desired  is  a  civilian,  the  judge  advo- 
cate or  other  proper  person  Bending  Interrogatories  as  above,  will  inclose  with 


APPENDICES.  381 

them  a  prepared  Voucher  tor  the  fees  and  mileage  of  the  witness,  Leaving  blank 
such  spaces  provided  (herein  as  It  may  be  necessary  to  leave  blank,  accom- 
panied by  the  required  number  of  copies  of  the  orders  appointing  the  court, 
military  commission,  or  board.  The  judge  advocate,  summary  court,  or  recorder 
will  also  send  with  the  interrogatories  duplicate  subpoena  requiring  the  witness 
to  appear  in  person  at  a  time  and  place  to  be  fixed  by  the  officer,  military  or  civil, 
who  is  to  take  the  deposition.  If  the  name  of  this  oflicer  is  not  known,  the 
space  provided  for  it  will  be  left  blank.  If  a  military  oflicer  takes  the  depo- 
sition, he  will  complete  the  witness  voucher,  certify  it,  and  transmit  it  to  the 
nearest  disbursing  quartermaster  for  payment.  When  the  deposition  is  to  be 
taken  by  a  civil  oflicer,  lie  will  be  asked  to  obtain  and  furnish  to  the  military 
oflicer  requested  or  designated  to  cause  the  deposition  to  be  taken  the  neces 
sary  data  for  the  completion  of  the  witness  voucher,  and  the  latter  will  com- 
plete the  voucher,  certify  it,  and  transmit  it  to  the  nearest  disbursing  quarter- 
master for  payment.  In  the  case  of  a  military  witness,  a  subpoena  will  not  ac- 
company the  interrogatories,  but  the  oflicer  before  whom  the  deposition  is  to  be 
taken  will  take  the  necessary  steps  to  have  the  witness  appear  at  the  proper 
time  and  place.     (M.  C.  M.,  par.  177.) 

3.  Payment  of  civilian  witnesses,  etc. — (a)  A  civilian,  not  in  Government 
employ,  duly  summoned  to  appear  as  a  witness  before  a  military  court,  com- 
mission or  board,  or  at  a  place  where  his  deposition  is  to  be  taken  for  use  before 
such  military  court,  commission  or  board,  will  receive  $1.50  for  each  day  of  his 
actual  attendance  before  such  military  court,  commission  or  board,  or  for  the 
purpose  of  having  his  deposition  taken,  and  5  cents  a  mile  for  going  from  his 
place  of  residence  to  the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5 
cents  a  mile  for  returning,  except  as  follows : 

(1)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in  attendance 
as  above  stated,  and  15  cents  for  each  mile  necessarily  traveled  over  stage 
line  or  by  private  conveyance,  and  10  cents  for  each  mile  over  any  railway 
or  steamship  line. 

(2)  In  Alaska,  east  of  the  one  hundred  and  forty -first  degree  of  west  longi- 
tude, he  will  receive  $2  a  day  while  in  attendance  as  above  stated,  and  10  cents 
a  mile ;  and  west  of  said  degree  $4  a  day  and  15  cents  a  mile. 

(3)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon,  California, 
Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona  he  will  receive  $3  a 
day  for  the  time  of  actual  attendance  as  above  stated,  and  for  the  time  neces- 
sarily occupied  in  going  to  and  returning  from  the  same,  and  15  cents  for  each 
mile  necessarily  traveled  over  any  stage  line  or  by  private  conveyance,  and  5 
cents  for  each  mile  by  any  railway  or  steamship.     (M.  C.  M.,  par.  185.) 

(0)  Civil  officers  before  whom  depositions  are  taken  for  use  in  the  military 
service  will  be  paid  the  fees  allowed  by  the  law  of  the  place  where  the  deposi- 
tions are  taken.     (M.  C.  M.,  par.  181.) 

4.  Articles  of  War. 

Abt.  2G.  Depositions — before  whom  taken. — Depositions  to  be  read  in  evi- 
dence before  military  courts,  commissions,  courts  of  inquiry,  or  military  boards, 
or  for  other  use  in  military  administration,  may  be  taken  before  and  authenti- 
cated by  any  oflicer,  military  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is  taken  to  administer 
oaths. 

Abt.  114.  Authority  to  administer  oaths. — Any  judge  advocate  or  acting 
judge  advocate,  the  president  of  a  general  or  special  court-martial,  any  summary 
^court-martial,  the  judge  advocate  or  any  assistant  judge  advocate  of  a  general 
or  special  court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry  or 


882  MANUAL   FOR  COURTS- MARTIAL. 

of  a  military  board,  any  officer  designated  to  take  a  deposition,  any  officer  de- 
tails! to  conduct  an  Investigation,  and  the  adjutant  of  any  command  shall  have 
power  to  administer  oaths  tor  the  purposes  of  the  administration  of  military 
justice  and  for  other  purposes  of  military  administration ;  and  in  foreign 
places  where  the  Army  may  be  serving  shall  have  the  general  powers  of  a 
notary  public  or  of  a  consul  of  the  United  States  in  the  administration  of  oaths, 
the  execution  and  acknowledgment  of  legal  instruments,  the  attestation  of 
documents,  and  all  other  forms  of  notarial  acts  to  be  executed  by  persons  sub- 
ject to  military  law. 

5.  Taking  depositions  in  foreign  country. — If  the  evidence  desired  from  a 
Witness  residing  in  a  foreign  country  is  necessary  and  material  and  is  desired 
to  be  read  before  a  court-martial,  military  commission,  court  of  inquiry,  or 
military  board  sitting  within  any  of  the  States  of  the  Union  or  the  District 
of  Columbia,  interrogatories  (accompanied  by  the  necessary  vouchers  for  fees 
and  mileage)  will  ordinarily  be  forwarded  through  military  channels  to  The 
Adjutant  General  of  the  Army.  They  will  then  be  transmitted  by  the  Secretary 
of  War  to  the  Secretory  of  State  with  the  request  that  they  be  sent  to  the 
proper  consul  of  the  United  States  and  the  deposition  of  the  witness  taken. 
In  the  case  of  troops  serving  along  the  international  boundaries  outside  of  the 
United  States  proper,  or  in  foreign  countries,  the  officer  exercising  general 
court-martial  jurisdiction  may,  in  his  discretion,  detail  an  officer  to  take  the 
deposition  of  a  civilian  witness  or  he  may  send  the  interrogatories  direct  to  the 
consul  of  the  United  States  nearest  the  place  of  residence  of  the  witness  with 
the  request  that  the  deposition  be  taken.  In  the  latter  case  the  interrogatories 
will  be  accompanied  by  the  proper  vouchers  for  the  fees  and  mileage  of  the 
witness.     (M.  C.  M.,  par.  182.) 


APPENDIX  13. 
SUBPOENA  FOR  CIVILIAN  WITNESS. 


The  President  of  the  United  States  to ,  greeting : 

You  are  hereby  summoned  and  required  to  be  and  appear  in  person  on  the 

day  of ,  191 — ,  at o'clock  —  m.,1  before  ,'  a ,8 

designated  to  take  your  deposition  to  be  read  in  evidence  before  a  * of 

the  United  States,  at  ,  appointed  to  meet  by  paragraph  ,  Special 

Orders,  No.  ,  Headquarters  ,  dated  ,  191—,  then  and  there 

to  testify  and  give  evidence  as  a  witness  for  the in  the  case  of  8 , 

*  and  you  are  hereby  required  to  bring  with  you,  to  be  used  in  evidence  in  said 

case,  the  following  described  documents,  to  wit : . 

And  have  you  then  and  there  this  precept. 
Dated  at this day  of ,  191 — . 


(To  be  subscribed  by  judge 
advocate,  recorder,  etc.) 

The  icitness  is  requested  to  subscribe  oh  one  copy  of  the  subpoena  the  follow- 
ing and  to  return  to  the  person  serving  the  subpoena  the  copy  thereof  so 
subscribed. 


,  191- 

I  hereby  accept  service  of  the  above  subpoena. 


Form  No.  76,  A.  G.  O.  (Signature  of  witness.) 

[BACK.] 

Personally    appeared    before   me    the    undersigned    authority,    ,    who, 

being  first  duly  sworn  according  to  law,  deposes  and  says  that  at  on 

,  191 — ,  he  personally  delivered  to  in  person  a  duplicate  of  .the 

within  subpoena. 


Subscribed  and  sworn  to  before  me  at this day  of ,  191- 


(Rank,  organization,  and  ofiicial  character.) 


1  I. ;iic  mil   when  inappropriate  "before  ,  a  designated  to  take 

your  deposition  to  be  read  in  evidence." 

2  When  used,  enter  name,  rank,  and  organization,  if  any. 

'  When  used,  enter  official  character,  if  any,  such   as  judge   advocate,   sum- 
mary court,   notary  public,  etc. 
'General  (or  special,  or  summary)  court-martial, 
6  Kntcr  name,  etc.,  of  accused  or  other  subject  of  investigation, 
"Line  out  when  inappropriate  "and  you  are  hereby  required  to  bring  with 
you,  to  be  read  in  evidence  in  said  case,  the  following  described  documents, 
to  wit" 


53915 


884  MANUAL    FOR    0OUBT8-MABTIAL. 

I  Sffl  i:i  I   I  ions. 

1.  Articles  of  war. —  (a  >   Prooesa  to  obtain  witnesses. — Every  Judge  adv. 

..i'  a  general  or  special  court-martial  ami  every  summary  court-martial  aha! 

have  power  (<•  issue  the  like  process  to  compel  witnesses  to  appear  and  lest  if > 
which  courts  of  the  United  Stales,  having  criminal  jurisdiction,  may  lawfully 
Issue;  hut  such  process  shall  run  to  any  part  of  the  United  States,  its  Ter 
ritorles,  and  possessions.     (A.  W.  22.) 

(b)  Refusal  to  appear  or  testify. — Every  person  aol  subject  to  military  law 
wh>>,  being  duly  BUbpamaed  to  appear  as  a  witness  before  any  military  court. 
commission,  court  of  inquiry,  or  hoard,  or  before  any  officer,  military  or  civil 
designated  t<>  take  a  deposition  to  be  read  in  evidence  before  such  court,  com 
mission,  court  of  Inquiry,  <>r  hoard,  willfully  neglects  or  refuses  to  appear,  or 
refuses  to  qualify  as  a  witness,  or  to  testify,  or  produce  documentary  evidence 
b  smii  person  may  have  been  legally  subpoenaed  to  produce,  shall  b» 
•1  guilty  of  a  misdemeanor,  for  which  such  person  shall  be  punished 
on  information  In  the  district  court  of  the  United  States  or  in  a  court  of 
original  criminal  jurisdiction  in  any  of  the  territorial  possessions  of  the  United 
Slates,  jurisdiction  being  hereby  conferred  upon  such  courts  for  such  purpose, 
and  it  shall  be  the  duty  of  the  United  States  district  attorney  or  the  officer 
prosecuting  for  the  Government  in  any  such  court  of  original  criminal  juris- 
diction, on  the  certification  of  the  facts  to  him  by  the  military  court,  com 
mission,  court  of  Inquiry,  or  board,  to  file  an  information  against  and  prosecute 
the  person  so  offending,  and  the  punishment  of  such  person,  on  conviction,  shah 
be  a  fine  of  not  more  than  $500  or  imprisonment  not  to  exceed  six  months,  or 
both,  at  the  discretion  of  the  court  :  Provided,  That  the  fees  of  such  witness  and 
his  mileage,  at  the  rates  allowed  to  witnesses  attending  the  courts  of  the  United 
states,  shall  be  duly  paid  or  tendered  said  witness,  such  amounts  to  be  paid 
out  of  the  appropriation  for  the  compensation  of  witnesses.     (A.  W.  23.) 

2.  Tender  of  fees  preliminary  to  prosecution. — In  case  a  civilian  witness  is 
duly  Subpoenaed  under  the  authority  of  A.  W.  22  and  willfully  neglects  or 
refuses  to  appear  or  refuses  to  qualify  as  a  witness,  or  to  testify  or  produce 
documentary  evidence,  which  he  may  have  been  legally  subpoenaed  to  produce 
he  will  at  once  be  tendered  or  paid  by  the  nearest  quartermaster  one  day's  fees 
i ud  mileage  for  the  Journeys  to  and  from  the  court,  and  will  thereupon  be  again 
called  upon  to  comply  with  the  requirements  of  the  law.  Upon  failing  the 
second  time  to  comply  with  the  requirements  of  the  law,  a  complete  report  of 
the  case  will  be  made  to  the  officer  exercising  general  court-martial  jurisdiction 
over  the  command  with  a  view  to  presenting  the  tacts  to  the  Department  ol 
Justice  for  the  punitive  action  contemplated  in  A.  W.  2::.     (M.  C.  M.  172.) 

3.  Civilians  not  in  Government  employ. — A  civilian  not  in  Government  employ, 
duly  summoned  to  appear  as  a  witness  before  a  military  court,  commission,  or 
board,  <>r  at  a  place  where  his  deposition  is  to  be  taken  for  use  before  such  court, 
commission,  or  board,  will  receive  $1.50  for  each  day  of  his  actual  attendance 
before  such  court,  commission,  or  hoard,  or  for  the  purpose  of  having  his  deposi- 
tion taken,  and  5  cents  a  mile  for  going  from  his  place  <>f  residence  to  the  place 

rial  <>r  of  the  taking  of  his  deposition,  and  5  cents  a   mile  for  returning, 

as  follows: 

(a)   In  I'orto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in  attendance, 

as    above   stated,    and    15   cents    for    each    mile    necessarily    traveled    over   Stage 

line  or  by  private  conveyance,  and  10  cents  for  each  mile  over  any  railway 'or 

steamship  line. 


APPENDICES.  385 

(&)  In  Alaska  east  of  the  one  hundred  and  forty-first  degree  of  west  longi- 
tude he  will  receive  $2  a  day  while  in  attendance  as  above  slated  and  10  cents 
a  mile,  and  west  of  said  degree  $4  a  day  and  15  cents  a  mile. 

(o)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon,  California, 
Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona,  will  receive  $3  a  day 
for  the  time  of  actual  attendance  as  above  stated  and  for  the  time  necessarily 
occupied  in  going  to  and  returning  from  the  same,  and  15  cents  for  each  mile 
necessarily  traveled  over  any  stage  line  or  by  private  conveyance,  and  5  cents 
for  each  mile  by  any  railway  or  steamship.      (M.  C.  M.,  par.  1S5.) 

[Note. — 1.  Travel  must  be  estimated  by  the  shortest  usually  traveled  route — 
by  established  lines  of  railroad,  stage,  or  steamer — the  time  occupied  to  be 
determined  by  the  official  schedules,  reasonable  allowance  being  made  for  un- 
avoidable detention. 

2.  These  rates  apply  to  the  Philippine  Islands.      (See  Cir.  45,  A.  G.  O.,  1902.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  transportation  on 
transport  or  other  Government  conveyance,  is  entitled  to  57.142  per  cent  of  5 
cents  per  mile  (equal  to  2.857  cents  per  mile).  (Comp.  Dec.,  Aug.  20,  1902,  pub- 
lished in  Cir.  45,  A.  G.  O.,  1902.)] 

4.  Civilians  in  Government  employ. — Civilians  in  the  employ  of  the  Govern 
ment  when  traveling  upon  summons  as  witnesses  before  military  courts  are 
entitled  lo  transportation  in  kind  from  their  place  of  residence  to  the  place 
where  the  court  is  in  session  and  return.  If  no  transportation  be  furnished, 
they  are  entitled  to  reimbursement  of  the  cost  of  travel  actually  performed  by 
the  shortest  usually  traveled  route,  including  transfers  to  and  from  railway 
stations  at  rates  not  exceeding  50  cents  for  each  transfer,  and  the  cost  of 
sleeping-car  accommodations  to  which  entitled  or  steamer  berth  when  an  extra 
charge  is  made  therefor.  They  are  also  entitled  to  reimbursement  of  the  actual 
cost  of  meals  and  rooms  at  a  rate  not  exceeding  $3  per  day  for  each  day  actually 
and  unavoidably  consumed  in  travel  or  in  attendance  upon  the  court  under  the 
order  or  summons.  No  allowance  will  be  made  to  them  when  attendance  upon 
court  does  not  require  them  to  leave  their  stations.     (M.  C.  M.,  par.  184.) 


APPENDIX  14. 
WARRANT  OF  ATTACHMENT. 


United  States 
vs. 


The  President  of  the  United  States  to ,  greeting : 

WHEREAS ,  of ,  was  on  the day  of 191—,  at , 

duly  subpoenaed  to  appear  and  attend  at  ,  on  the day  of  , 

191 — ,  at o'clock  —  m.,  before  a court-martial  duly  appointed  by 

paragraph  — ,  Special  Orders,  No.  — ,  dated  Headquarters , ,  191 — . 

to  testify  on  the  part  of  the  in  the  above-entitled  case;  and  whereas 

he  has  failed  to  appear  and  attend  before  said  court-martial  to  testify. 

as  by  said  subpoena  required,  and  whereas  he  is  a  necessary  and  material  wit« 

ness  in  behalf  of  the in  the  above-entitled  case : 

NOW,  THEREFORE,  by  virtue  of  the  power  vested  in  me,  the  undersigned, 

as  judge  advocate  of1  said court-martial,  by  article  22  of  section  1342  ol 

the  Revised  Statutes  of  the  United  States  (39  Stat.,  650),  you  are  hereby  com- 
manded and  empowered  to  apprehend  and  attach  the  said  wherever  he 

may  be  found  within  the  United  States,  its  Territories,  or  possessions  and  forth 

with  bring  him  before  the  said  court-martial  at  to  testify  a<- 

required  by  said  subpoena. 


Judge  Advocate  of  said Court-Martial. 


Dated — , 

,  191- 

Form  No.  272,  A.  G.  0. 


1  If  a  summary  court-martial,  line  out  the  words  "judge  advocate  of." 

2  If  a  summary  court-martial,  line  out  and  substitute  the  necessary  words. 


387 


APPENDIX  15. 


Form   A. 

HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  A  WITNESS 
IS  HELD  UNDER  A  WARRANT  OF  ATTACHMENT). 

RETURN    TO    WRIT. 

In  re (name  of  party  held). 

(Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  Maj. ,  United  States  Infantry,  upon  whom  has 

been   served   a  writ   of  habeas   corpus  for  the  production  of , 

respectfully  makes  return  and  states  that  he  holds  the  said by 

authority  of  the  United  States,  pursuant  to  a  warrant  of  attachment  issued 
under  section  3,  act  of  August  29,  1916,  twenty-second  Article  of  War,  by  a 
judge  advocate  of  a  lawfully  convened  general  (or  "special  ")  court-martial  (or 
"by  a  summary  court-martial  ")  and  duly  directed  to  him,  the  said  respondent, 
for  execution;  that  he  is  diligently  and  in  good  faith  engaged  in  executing  said 
warrant  of  attachment,  and  that  he  respectfully  submits  the  same  for  the 
inspection  of  the  court,  together  with  the  original  subpoena  and  proof  of 
service  of  the  same,  a  copy1  of  the  order  appointing  the  court-martial,  sworn  to 

as  sudi.  before  which  the  said has  been  subpoenaed  to  testify,  a 

copy  of  the  charges  and  specifications  in  the  case,  sworn  to  as  such,  in  which 

said is  a  witness,  and  an  affidavit  of  ; : showing  that 

said is  a  material  witness  in  the  case;   that  he  has  failed  to 

appear  and  has  offered  DO  valid  excuse  for  such  failure. 

1  The  copy  of  the  order  appointing  the  court  and  of  the  charges  will  be  sworn 
to  by  the  judge  advocate  (or  summary  court-martial)  before  an  officer  author- 
ized to  administer  oaths. 


390  MANUAL   FOR   COURTS-MARTIAL. 

In   obedience,    however,    to   the   sahl   writ   of   habeas   corpus   the  respondent 

herewith  produces  before  the  court  the  body  of  the  said ,  and 

Box  the  reasons  Bet  forth  in  this  return  prays  this  honorable  court  to  dismiss 
the  said  writ. 


Major,  United  States  Infantry. 

Dated , , 

,  101—. 


Form  B. 


HABEAS  CORPUS  BY   STATE  COURT   (WHERE  WITNESS  IS  HELD 
UNDER  A  WARRANT  OF  ATTACHMENT). 

RETURN   TO   WRIT. 

,  !/<//.<  return  as  in  case  of  writ'by  a  United  States  court,  supra,  page  S89, 
except  as  to  the  last  paragraph,  for  which  substitute  as  follows:) 

And  said  respondent  further  makes  return  that  he  has  not  produced  the  body 

of  the  said ,  because  he  holds  him  by  authority  of  the  United 

States  as  above  set  forth,  and  that  this  court  (or  "your  honor,"  as  the  case 
may  be)  is  without  jurisdiction  in  the  premises,  and  he  respectfully  refers  to 
the  decisions  of  the  Supreme  Court  of  the  United  States  in  Ableman  v.  Booth, 
21  Howard,  506,  and  Tarble's  case,  13  Wallace,  307,  as  authority  for  his  action, 
and  prays  this  court  (or  "your  honor")  to  dismiss  the  writ. 

Major,  United  States  Infantry. 

Dated , , 


101—. 


Form  C. 


HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  PRISONER 
IS  HELD  FOR  TRIAL  OR  UNDER  SENTENCE). 

RETURN  TO  WRIT. 

ln  ,«, (name  of  party  held). 

{Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  MaJ. ,  United  States  Infantry,  upon  whom  has 

been  served  a  writ  of  habeas  corpus  for  the  production  of 

spectrally  makes  return  and  states  that  he  holds  the  said by 

authority  ot  the  United  stales  as  a  BOldler  In  the  United  states  Army  [or  "as 
.  mi  prisoner  under  sentence  of  general  court-martial")  under  the  follow- 
ing circumstances : 

That  tli<>  said was  duly  enlisted  as  a  BOldler  in   the  service  of 

the  tinted  States  at , ,  on ,  101—   for  a  term  of 

'//•  the  offense  Is  fraudulent  enlistment,  this  recital  should  be  omitted.) 


APPENDICES.  391 

(Here  state  the  offense.  If  it  is  fraudulent  enlistment  by  representing  himself 
to  be  of  the  required  age,  it  may  be  stated  as  folloios:) 

That  on  the day  of  ,  191—,  at the  said  , 

being  under  18  years  of  age,  did  fradulently  enlist  in  the  military  service 
of  the  United  States  for  the  term  of years,  by  falsely  representing  him- 
self to  be  over  18  years  of  age,  to  wit,  years   and  months; 

and  has,  since  said  enlistment,  received  pay  and  allowances  (or  either)  there- 
under. 

(//  the  offense  is  desertion,  it  may  be  stated  substantially  as  follows:) 

That  the  said deserted  said  service  at , ,  on 

,  191 — ,  and  remained  absent  in  desertion  until  he  was  apprehended  at 

,  ,  on ,  191 — ,  by ,  and  was  thereupon 

committed  to  the  custody  of  the  respondent  as  commanding  officer  of  the 
post  of . 

The  said has  been  placed  in  confinement  (or  "arrest,"  as  the 

case  map  be),  and  formal  charges  have  been  preferred  against  him  for  said 
offense,  a  copy  of  which,  duly  certified  and  verified,1  is  hereto  annexed ;  and 
that  he  will  be  brought  to  trial  thereon  as  soon  as  practicable  before  a  court- 
martial,  to  be  convened  by  the  commanding  general  of  the  Department 

(or  "convened  by  Special  Orders,  No.  — ,  dated  Headquarters  Depart- 
ment, 191 — ,  a  copy  of  which,  duly  certified  and  verified,1  is  herein  annexed"). 

(//  the  party  held  is  a  general  prisoner,  the  following  paragraph  should  be 
substituted  for  the  preceding  paragraph:) 

That  the  said was  duly  arraigned  for  said  offense  before  a 

general  court-martial,  convened  by  Special  Orders,  No.  ,  dated  Head- 
quarters   Department,  191 — ,  was  convicted  thereof  by  said  court,  and  was 

sentenced  to  be  ,  which  sentence  was  duly  approved  on  the  day 

of ,  191 — ,  by  the  officer  ordering  the  court  (or  "by  the  officer  command- 
ing said  Department  for  the  time  being")   as  required  by  the  ■ 

article  of  war.  A  copy  of  the  order  promulgating  said  sentence,  duly  certified 
and  vertified,1  is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the  respondent  here- 
with produces  before  the  court  the  body  of  the  said ,  respectfully 

refers  to  the  decisions  cited  in  the  annexed  brief  (if  the  case  docs  not  involve 
a  minor  under  the  required  age  the  words  "respectfully  refers  to  the  decisions 
cited  in  the  annexed  brief"  will  be  omitted),  and  for  the  reasons  set  forth  in 
this  retain  prays  this  honorable  court  to  dismiss  the  said  writ. 


Major, United  States  Infantry. 

Dated ,  . 


191- 


'I  ho  copy  of  the  charges  will  be  certified  by  the  adjutant  ami  sworn  to  before 
an  officer  authorized  to  administer  oaths  for  military  administration,  in  the 
following  form: 

I  hereby  certify  that  the  foregoing  is.  a  full  and  true  copy  of  the  original 

charges  preferred  against ,  and  that  the  same  are  in  (lie  usual 

form   of  military  charges  and  conform  to  the  rules  regulating   military   pro- 
cedure. 


A'!  jut  <i  p.  I. 


Sworn  to  and  subscribed  before  me  this day  of ,  191 — . 

Judge  A'/ rocate  of  Court-Martial 
(Or  "Summary  Court-Martial"). 

The  copy  of  the  order  convening  the  court  or  publishing  the  sentence  will  be 
certified  and   verified   in  a  similar  manner. 


392  MANUAL    FOR    COURTS   M  A  1;  i  I  A  : 


HABEAS  CORPUS  BY  STATE  COURT  (WHERE  PRISONER  IS  HELD 
FOR  TRIAL  OR  UNDER  SENTENCE). 


[Make  return  as  in  ease  a  writ  by  a  United  States  oourt,  emoepi  as  t>>  last 
paragraph,  for  vohioh  substitute  the  paragraph  set  out  in  Form  /.',   ippendia  15.) 

[NBTBUCTIONfl    StS  TO  BBTUKNH  To  \vi:i  is  nr   BABJ9A6  I  orpun. 

'ill.'  Following  instructions  in  regard  to  returns  under  a.  k.  998  and  O'.t'.t,  In 
tin'  cases  of  soldiers  who  have  committed  military  offenses  and  arc  held  for 
trial  or  punishment  therefor,  and  of  general  prisoners,  are  for  the  information 
an<i  guidance  of  all  concerned  : 

1.  The  return  under  A.  R.  999  will  be  made  in  accordance  with  Form  0 
(Appendix  15),  and  if  the  person  whose  release  is  sought  has  committed  the 
offenst  of  fraudulent  enlistment  by  representing  himself  to  be  of  the  required 
age,  will  refer,  as  in  last  paragraph  of  that  form,  to  the  brief  of  authorities 
which  follows  these  Instructions,  and  a  copy  of  that  brief  will  he  annexed  to  the 
return.  Should  the  court  order  the  discharge  of  the  party,  the  officer  making 
the  return,  or  counsel,  .should  note  an  appeal  pending  instructions  from  the  Wai 
I  department,  and  he  will  report  to  The  Adjutant  General  of  the  Army  the  action 
taken  by  the  court  and  forward  a  copy  of  the  opinion  of  the  court  as  soon  as 
it  can  be  obtained. 

2.  The  return  under  A.  R.  098  will  he  made  in  accordance  with  Form  D 
(Appendix  1">).  but  a  oopy  Of  the  brief  of  authorities  is  not  intended  to  be 
attached  to  the  returns  to  writs  of  habeas  corpus  issuing  from  a  state  court. 

(C.    '••    C.  M.,  No.  J,.) 


BRIEF  TO  BE  FILED  WITH  A  RETURN  TO  A  WRIT  OF  HABEAS 
CORPUS  ISSUED  BY  A  UNITED  STATES  COURT  IN  THE  CASE  OF 
A  SOLDIER  WHOSE  DISCHARGE  IS  SOUGHT  ON  THE  GROUND 
OF  MINORITY. 


The  right  to  avoid  the  contract  of  enlistment  of  a  soldier  on  the  ground  of 
minority  will  be  considered  under  the  following  heads:  I.  Under  the  common 
law;  II.  Under  the  statutes;  III.  Where  the  minor  is  held  for  punishment. 

I. 

UNDER  THE  COMMON  LAW. 

The  enUstnu  lit  of  a  minor  is  not  avoidable  by  the  minor  nor  by  his  parent  or 
guardian  at  common  lair,  but  is  only  avoidable  where  the  right  to  avoid  it  is 
conferred  by  statute. 

This  proposition  is  clearly  established  by  the  decision  of  the  Supreme  Court 
(In  re  Morrissey,  137  U.  S.,  157,  159),  where  the  court  said: 

An  enlistment  is  not  a  contract  only,  but  effects  a  change  of  status. 
(QrinUey's  case,  137  U.  S.,  147.)  It  is  not,  therefore,  like  an  ordinary 
contract,  voidable  by  the  infant.  At  common  law  an  enlistment  was  not 
voidable  either  by  the  infant  or  by  his  parents  or  guardians. 

The  court  cites,  in  support  of  these  statements,  Rex  v.  Rother field  Greys  (1 
Barn.  &  Cress.,  345,  350;  8  Eng.  C.  L.,  149)  ;  Rex  v.  Lytchet  Matraverse  (7  Barn. 
&  Cress.,  226,  231;  14  Eng.  C.  L.,  107)  ;  Commonwealth  v.  Gamble  (11  Serg. 
&  Bawle  (Pa.  R.),  93)  ;  U.  8.  v.  Blalceney  (3  Grattan,  387,  405). 

In  Rex  v.  Rotherfield  Greys,  supra,  it  was  said  by  Best,  J. : 

By  the  general  policy  of  the  law  of  England  the  parental  authority 
continues  until  the  child  attains  the  age  of  twenty-one  years;  but  the 
same  policy  also  requires  that  a  minor  shall  be  at  liberty  to  contract  an 
engagement  to  serve  the  State.  When  such  an  engagement  is  contracted 
it  becomes  inconsistent  with  the  duty  which  he  owes  to  the  public  that 
the  parental  authority  should  continue.  The  parental  authority,  however, 
is  suspended,  but  not  destroyed.  When  the  reason  for  its  suspension 
ceases  the  parental  authority  returns. 

In  Rex  v.  Lytchet  Matraverse,  supra.  Bayley,  J.,  after  quoting  these  views 
Of  Best,  J.,  says  : 

Lawrence,  J.,  in  Rex  v.  Roach  (6  T.  R.,  254),  seems  to  take  the  same 
view  of  the  subject  and  to  consider  the  authority  of  the  State  paramount 
to  that  of  the  parent  so  long  as  the  minor  continues  in  the  public  service, 
but  as  soon  as  he  leaves  it  then  the  parental  authority  is  restored. 

It  is  clear  from  these  authorities  and  others  which  could  be  cited  that  at 
common  law  the  enlistment  of  a  minor  of  sufficient  capacity  to  bear  arms  was 
valid  regardless  of  age.  The  right  of  the  State  to  the  services  of  such  minors 
is  forcefully  laid  down  in  Lanahan  v.  Birge  (30  Conn.,  438).  See  also  Coo-ley's 
Constitutional  Law,  page  99,  where  on  the  authority  of  Ex  parte  Brown  (5 
Cranch,  C.  C,  554),  and  United  States  v.  Bainbridgc  (1  Mason,  71),  it  is  said: 

Minors  may  be  enlisted  without  the  consent  of  their  parents  or 
guardians  when  the  law  fails  to  require  such  consent. 

II. 

UNDER  THE  STATUTES. 

The  pertinent  statutes  are  the  following: 

Sec.  mo,  r.  s.  Recruits  enlisting  in  i h«-  Army  musl  be  effective  and 
able-bodied  men,  and  between  the  ages  of  sixteen  and  thirty-five  years  at 
the  time  of  their  enlistment.  This  limitation  as  to  age  shall  not  apply  to 
soldiers  reenlisted. 


394  MANUAL    FOE    COUKTS-MART1AL. 

This  section  was  modified  by  the  ad  of  March  2,  L899  (80  Stat,  978),  which 
provides: 

That  the  limits  of  age  for  original  enlistments  in  the  Army  shall  be 
eighteen  and  thirty-five  years; 
and  again  modified  by  section  7  of  the  selective  draft  acl  <>f  May  is,  1917  (40 
Stat,  76,  81),  and  by  Chapter  xm  of  the  Army  Appropriation  act  of  July  9, 
1018,  providing: 

That  the  qualifications  and  conditions  for  voluntary  enlistment  as 
herein  provided  shall  be  the  same  as  those  prescribed  by  existing  law 
Cor  enlistments  In  the  Regular  Army,  except  that  recruits  for  service  In 
the* staff  corps  and  departments  may  be  accepted  who  arc  between  the 
ages  Of  forty-one  and  tit'ly-tive  years,  both  inclusive,  at  the  time  of  their 
enlistment,  and  that  all  other  recruits  must  be  between  the  ages  of 
eighteen  and  forty  years,  both  Inclusive,  at  the  time  of  their  enlistment 

SEC.    HIT.    K.   S.    No   person   under   the  age  Of  twenty-one  years  shall   be 

enlisted  <>r  mustered  into  the  military  service  of  the  United  States  without 

the  written  consent   of  his  parents  <»r  guardians:   Provided,  That   such 

minor  has  such  parents  or  guardians  entitled  to  his  custody  and  control. 

Tins  section  is  replaced  by  the  provision  of  section  27,  national  defense  act 

of  June  :;.  L918  (89  Slat.,  186),  which  reenacts  Lt  in  the  same  words,  substituting 

the  age  of  IS  years  for  the  age  of  21. 

SEC.  1118,  R.  S.  No  minor  under  the  age  Of  sixteen  years,  no  insane  or 
intoxicated  person,  no  deserter  from  the  military  service  of  the  United 
States,  and  no  person  who  lias  been  convicted  of  a  felony  shall  be  enlisted 
or  mustered  into  the  military  service. 
1.  The  statutes  confer  no  right  upon  the  minor  to  avoid  his  enlistment,  cer- 
tainly not  if  he  be  16  years  of  ago  or  over.    No  case  lias  been  found  directly  in 
point  holding  that  a  minor  under  16  pears- of  age,  if  of  sufficient  capacity  to 
bear  arms,  may  avoid  his  enlistment. 

Section  lilG,  R.  S.,  as  amended,  prescribing  the  age  limits  of  original  enlist- 
ment, was  made  for  the  benefit  of  the  Government  and  not  the  minor.  (In  re 
Morrissey,  137  r.  s.,  157;  In  re  Qrimley,  137  U.  S.,  147;  In  re  Wall,  8  Fed.  Rep., 
85;  Tn  re  Davison,  23  Fed  Rep.,  618;  Tn  re  Zimmerman,  30  Fed.  Rep.,  176;  In  re 
Spericer,  40  VM.  Rep.,  149;  In  re  Latoler,  40  Va\.  Rep.,  233;  Solomon  v.  Daven- 
port, 87  Fed.  Rep-  318;  Wagner  v.  Gibbon,  24  Fed.  Rep.,  135.) 

Section  L117,  R.  S.,  as  amended,  while  recognizing  the  right  of  the  parent 
lo  the  services  of  the  minor,  confers  no  right  in  the  minor  to  avoid  his  enlist- 
ment.    See  the  cases  cited  above. 

In  the  Morrissey  ease  the  Supreme  Court  of  the  United  States  said  that  the 
|.ro\  Lsion  Of  section    1 1  L6,   R.  S.. 

is  for  the  benefit  of  the  parent  or  guardian  *  *  *  but  it  gives  no 
privilege  to  the  minor  *  *  *  an  enlistment  Is  not  a  contract  only,  but 
effects  a  change  Of  status.  It  is  not.  therefore,  like  an  ordinary  contract. 
voidable  by  the  infant  *  *  *.  The  contract  of  enlistment  was  good, 
so  far  as  the  petitioner  is  concerned.  He  was  not  only  de,  facto  but 
de  jtn<  a  soldier  amenable  to  military  Jurisdiction. 
Whether  the  designation  of  the  age  limit  of  i<">  years  In  section  HIS,  R.  S., 

is  such  as  p>  make  the  enlistment   of  the  minor  under   16  years  of  age  void  or 

voidable  by  the  minor  has  not  been  decided.    On  principle,  the  ml \  If  of 

sufficient    capacity   to  render  military  service,  should   not   he  permitted   to  avoid 

his  enlistment  obtained  through  his  fraudulent  statements  as  to  his  age.      HOW- 

this  may  be.  If  the  minor  continued  to  serve  and   receive  pay  after  passing 

thai  age  he — 

acquires  the  status  of  a  soldier  like  one  who  was  enlisted  when  over 
16  years  without  the  consent  of  his  parents,  and  a  court-martial  has 
jurisdiction    to  try   and  sentence   him   to   punishment    for  desertion,    from 

which  sentence  be  can  not  be  discharged  on  habeas  corpus  on  petition 
of  himself  or  his  parents.     {Ex  parte  Hubbard,  182  Fed,  Rep.,  76.) 


APPENDICES.  395 

2.  Tht  statutes  requiring  the  consent  of  tin    parent  or  guardian  of  a  minor 

to  his  enlistment  (section  1117,  B.  8.,  amended  by  section  27,  act  of  June  S, 
t916)  impliedly  confer  upon  the  parent  or  guardian  the  right  to  avoid  an  en- 
listment entered  into  by  a  minor  under  the  prescribed  age  without  the  required 
ent,  where  the  minor  is  not  held  for  trial  or  punishment  for  a  military 
offi  nse. 

In  support  of  this  proposition  see  the  cases  cited  under  II,  proposition  1. 

3.  A  parent  or  guardian  with  knowledge  of  the  enlistment  of  a  minor  under 
the  prescribed  age  and  acquiescing  therein  for  a  considerable  period,  may  be 
held  to  be  estopped  from  asserting  the  right  to  avoid  the  enlistment. 

In  support  of  this  proposition  see  Ex  parte  Dunakin  (202.  Fed.  Rep.,  290), 
where  it  was  held,  quoting  from  the  syllabi : 

Where  a  minor  enlisted  without  the  consent  of  his  parent  or  guardian, 
and  his  mother,  who  was  his  surviving  parent,  on  learning  of  his  en- 
listment shortly  thereafter,  did  nothing  to  repudiate  the  same  or  to 
secure  his  release,  and  testified  that  she  would  have  been  reconciled  to 
it,  had  he  remained  in  the  Army  and  not  deserted,  but  that  after  his 
desertion  she  wanted  to  keep  him  out  of  the  Army,  her  acts  constituted 
an  implied  consent  to  his  enlistment. 

4.  A  minor  fraudulently  enlisting  and  remaining  in  the  service  after  attain- 
ing the  legal  age  of  enlistment,  or  the  age  beyond  which  parental  consent  is 
not  required,  thereby  validates  his  enlistment. 

In  support  of  this  proposition  see  the  case  of  Ex  parte  Hubbard  (182  Fed. 
Rep.,  76),  where  the  court  held,  quoting  the  syllabus: 

A  minor  enlisted  in  the  Army  when  under  the  age  of  16,  who  has 
continued  to  serve  and  receive  pay  after  passing  that  age,  acquires  the 
status  of  a  soldier  like  one  who  was  enlisted  when  over  16  without  the 
consent  of  his  parents,  and  a  court-martial  has  jurisdiction  to  try  and 
sentence  him  to  punishment  for  desertion,  from  which  sentence  he  can  not 
he  discharged  on  habeas  corpus  on  petition  of  himself  or  his  parents. 
(C.  M.  C.  M.,  No.  .'/.) 

III. 

WHERE    THE   MINOR  IS    HELD    FOR'  PUNISHMENT. 

Neither  the  minor  nor  his  parent  nor  guardian  may  avoid  the  enlistment 
\he  sold  it  r  is  held  for  trial  or  under  sentence  for  a  military  offense. 

In  support  of  this  proposition  see  the  cases  cited  above  under  II,  proposi- 
tion 1,  and  also  the  following:  In  re  Kaufman  (-11  Fed.  Rep.,  876)  ;  In  re 
Dohrendorf  (40  Fed.  Rep.,  148)  ;  In  re  Cosenow  (37  Fed.  Rep.,  668)  ;  In  re 
Dowd  (00  Fed.  Rep.,  71S)  ;  In  re  Miller  (114  Fed.  Rep.,  83S)  ;  United  States 
v.  Reaves  (126  Fed.  Rep.,  127)  ;  In  re  Lessard  (134  Fed.  Rep.,  305)  ;  Ex  parte 
And*  rson  1 16  Iowa,  595)  :  MeConologue's  case  (107  .Mass.,  154,  170)  :  In  re  Car- 
ver (142  Fed.  Rep.,  623)  ;  In  re  Scott  (144  Fed.  Rep.,  79)  ;  Dillingham  v.  Booker 
(163  Fed  Rep.,  696)  ;  Ex  parte  Rock  dli  Fed.  Rep.,  240)  ;  Ex  parte  Hubbard 
I  L82  Fed.  Rep.,  76)  :  Ex  parte  Lewkcnoitz  <  L63  Fed.  Rep.,  646)  ;  United  States 
v.  Williford  (220  Fed.  Rep.,  291). 

The  reasons  given  for  these  decisions  are  that  the  enlistment  of  a  minor 
in  ill"  Army  without  the  consent  of  his  parenl  or  guardian  required  by  section 
1117.  K.  S.,  "is  not  void,  but  voidable  only";  that  the  soldier  being  nol  onh 
ado  but  de  jure  a  soldier,  he  is  BUbjed  to  the  Articles  of  War  and  may 
commit  a  military  offense;  and  that  If  held  for  trial  or  punishment  for  a 
military  offense,  the  interests  of  the  public  in  the  administration  of  justice 
ar.-  paramount  to  the  righl  of  the  parenl  or  guardian,  and  require  that  the 
soldier  abide  the  consequences  of  his  offense  before  the  question  of  his  dis- 
charge will   be  considered  by  the  court.     In   the  Miller  ease    (114   Fed.  Rep., 


MANUA1     I  OB    '••■'•■■  i  \;  . 

the  court  supported  Its  holding  by  the  analogy  of  h  minor  held  for  pun- 
tor  a  i  i\  11  offense,  saj  Ing  : 

The  common  law,  unaided  by  Btatute,  Cully  recognizes  the  parents' 
rlghl  to  the  custody  and  services  of  their  minor  child;  but  it  has 
been  held  thai  they  could,  bj  the  writ  of  habeas  corpus  or  otherwise, 
obtain  his  custody  and  his  Immunity  when  he  was  held  by  an  ..nicer  of 
a  civil  court  of  competenl  jurisdiction  to  answer  a  charge  of  orlme.  His 
enlistment  having  made  the  prisoner  a  soldier  notwithstanding  his  mi- 
nority, he  is  amenable  to  tin*  military  lour  just  as  the  citizen  who  is  « 
niinor  is  amenable  to  the  civil  law.  77m-  parents  can  not  prevent  the 
lauf  8  enforcement  in  either  case    *    *    *. 

cited  were  approved  in  the  Reaves  case  (126  Fed.  Rep.,  127), 
•  upon  full  consideration  of  the  authorities  the  Circuit  Court  of  Appeals 
ided  Reaves,  a  minor,  who  had  deserted  from  the  Navy,  to  custodj 
naval  authorities  :is  represented  by  the  chief  of  police  who  had  apprehended 
bJm.     lu  tin-  Carver  cast    (142  Fed.  Rep.,  623),  the  sylldbus.  Is  as  follows: 

A  minor  under  the  age  of  18  years  who  unlawfully  enlisted  in  the 
Army  wlthoul  the  consent  of  his  father  can  not  be  discharged  from  the 
service  on  a  writ  of  habeas  corpus «sued  out  by  his  father  so  long  as  be 
Is  under  arrest  for  desertion- nor  until  he  has  been  discharged  from  such 
custody  or  has  Berved  the  sentence  Imposed  on  him  t>y  the  military 
tribunal. 
In  the  Lewkowitz  cast    (163  Fed.  Rep.,  646),  theeyllabus  roads: 

A  minor  who  by  misrepresenting  his  age  has  fraudulently  enlisted  In 
the  Army  without  the  consent  of    his    parents    and    thereby    subjected 
liimscii  to  punishment  under  military  law  will  not  he  relieved  from  such 
punishment  by  the  civil  courts  by  discharging  him  on  a  writ  of  habeas 
corpus  on  the  application  of  his  parents,  i  wen  though  the  military  prose- 
cution is  not  instituted  until  after  the  writ  was  i 
This  was  followed  by  the  unanimous  opinion  in  the  Circuit  Court  of  Appeals 
cast    (United  States  v.  Wllliford,  220  Fed.  Rep.,  291),  In  which 
the  court  expressly  approved  the  views  stated  in  the  Lewkowitz  <■,/.<«■,  quoting 
in  Tin,  it.  S.,  relating  to  procedure  under  writs  of  habeas  corpus,  which 
is  follows: 

The   court,   or   justice,   <»r  judge   shall    proceed    in   a   summary   way    to 
determine  the  facts  of  the  case  by  hearing  the  testimony  and  arguments 
and  thereupon  to  dispose  of  the  party  as  law  and  justice  require. 
The  court  added  : 

Law  and  justice  do  not,  In  our  opinion,  require  Love  to  be  withdrawn 
from  the  militarj  authorities  and  relieved  of  liability  for  his  offense  In 
favor  of  his  mother's  rlghl  to  his  custody. 
By  act  Of  July  27,  1892    (27  Stat,  278),  "fraudulent  enlistment   and  the  re- 
ceipt of  pay  or  allowance  thereunder"  was  .made  a  military  offense,  punishable 
under  the  sixty-second  article  of  war.    The  offense  is  now  defined  In  article  54, 
tides  of  War.  approved  Augusl  29,   L916  (39  Stat,  669),  which  pro- 
vider   thai   the  offense  "shall  "be  punished  as  a  court-martial  may  direct."     A 
■  who  procures  his  enllstmenl  by  willful  misrepresentation  or  concealment 
as  I  •  his  qualifications  for  enlistment  commits  this  offense,  and  the  statute  au- 
thorizes his  punishment   therefor.     In  general,  it  may  be  stated  that  where  .. 
minor  has  committed  a  military  offense  the  interests  of  the  public  in  the  admin- 
1..11  of  jii-t  ice  are  pa  ra  mount   to  the  rlghl  Of  the  parent  and  require  that   the 

soldier  shall  abide  the  consequences  of  his  offense  before  the  rlghl  to  his  dis* 
lassed  u] The  soldier  should  nol  be  allowed  i<>  escape  punlshmi  al 

though    his   parents   assert    their   rlghl    to    his   services.      A 

in   civil    life   is   liable   m  punishment    for  a    crime   or    misdemeanor,   even 

h   his  confinement    may   interfere  with   the   rights  of  his  parents;   and    the 

ah      •  authorities  clearly  apply   the  same  nule  to  a   minor  held  for  trial  or  pun- 

isbmeiit   for  a   military,    offense.      \C    M .  ('.  M ..    Vo.    ',.) 


APPENDIX  16. 


[Sheet  1.] 
WAR  DEPARTMENT 


WAR   DEPARTMENT 
Form  No.  33S. 
Approved  by  the  Comptroller  of  the         quartermaster  corps 
Treasury  April  29, 1914 

PUBLIC  VOUCHER 


Voucher  No 

General  Account. 
Detail  Account. . 
COMPENSATION,  CIVILIAN  WITNESS 
APPROPRIATION:  PAY,  ETC.,  OP  THE  ARMY,  191     Symbol 

The  United  States  to ,  Dr. 

Address  : 


Object 

Symbol 

Amount 

U.S. 
Notations 

For  mileage  as  a  witness  from to and 

For  allowance  as  a  witness  while  in  attendance — 

Giving  deposition  at for  use  before  a  court-martial 

from 191   ,to ,191   ,  as  per 

I  certify  that,  as  stated  above,  I  attended  as  a  witness  for  the  period  named,  and  as  such 
the  travel  between  the  places  named  was  required. 

(Payee) 

(Do  not  sign  in  duplicate) 

Examined 
by 

(Account  to  be  completely  Oiled  in  before  certification,  and  no  alteration  or  erasure  to  be  made  thereafter) 

I  certify  that ,  a  civilian  not  in  Government  employ, 

has  been  in  attendance  from ,  191     ,  to ,  191     , 

inclusive  j3?  a.material  witness  before  a court-martial  duly  convened  at  this  place,  \ 

\giving  deposition  for  use  of  a  court-martial  convened  under  attached  orders,  J 

and  that  he  was  duly  summoned  thereto  from ,  and  was  not  furnished 

transportation  by  the  Government  for  any  portion  of  the  journey. 

Place 

Date 191  


(Title) 


Paid  by  check  No ,  dated 

favor  of  payee  named  above  for  $ . 


191     ,  of on 


.,  in 


397 


MANUAL   FOR   COURTS-MARTIAL. 


aived ,  191     ,  of  ,  in  cash,  the  sum  of ilollai* 

an«l cents,  in  full  payment  of  the  above  account. 


(This  form  to  be  used  only  for  payment  of  civilian  witnesses  not  in  Government  employ) 


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5£     oa 


WAR  DEPARTMENT 

Form  No.  338. 

Approved  l>v  the  Comptroller  of  the 

Treasury  April  29, 1914 


Voucher  No 

General  Account , 
Detail  Account .. 


[Sheet  2.] 
WAR  DEPARTMENT 

QUARTERMASTER  CORPS 

PUBLIC  VOUCHER 

COMPENSATION,  CHILIAN  WITNESS 

appropriation:   pay,  etc.,  op  the  army,  191 

Symbol 

The  United  States  To ,  Dr. 


Object 
■Symbol 

Amount 

U.S. 
Notations 

For  mileage  as  a  witness  from to and 

return,  being miles,  at cents  per  mile 

For  allowance  as  a  witness  while  in  attendance— 

from ,191  ,  to ,  191 ,  as  per 

oartUtoate  hereon, <'■':•'*,  at  $ per  day 

Total 

. 

EXAMINE! 
BY 

APPENDICES. 


309 


MEMORANDUM  VOUCHER 

(To  be  filled  in  and  retained  by  paying  officer) 


Voucher  certified  by  . 
Voucher  approved  by- 


Paid  by  check  No ,  dated  . . . 

in  favor  of  payee  named  above  for  $. 


191     ,  of on 


Paid  in  cash by 

(Date) 


Funds  derived  from  check  No on 

$ 


dollars  and cents. 


(This  form  to  be  used  only  for  payment  of  civilian  witnesses  not  in  Government  employ) 


1   - 

1    5 


1. 

1   0> 

1  ■'-> 

1  >> 
1  «3 
1  A 

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1   4) 

|a 

in 
m 

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s 

1 

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o 

pf 
o 

xn 

a 

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u 

o 

ACCOUNTS   OF 
(Name  of  disbursing  officer) 
(Official  designation)- 

(Place  where  located) 
(Period  for  which  voucher  is  rendered) 

APPENDIX  17. 


WAR  DEPARTMENT 

Form  No  350  a. 

Approved  bv  the  Comptroller  of  the 

Treasury  April  29, 1914. 


[Sheet  1.] 
WAR  DEPARTMENT 


(Bureau  or  Office.) 
PUBLIC  VOUCHER 

REIMBURSEMENT   OF   TRAVELING    EXPENSES 


Appropriation 

Appropriation 

Appropriation 

The  United  States,  to. 


Symbol. 
Symbol . 
Symbol. 
Dr. 


Voucher  No 

General  Account. 
Detail  Account.. 


Address: 


For  reimbursement  of  traveling  expenses  incurred  In  the  discharge  of 

official  duty  from ,  191    ,  to ,191    , 

under  writ  tea  authorization  from  the , 

dated ,191    ,  a  copy  of  which  is as  per  itemized 

schedule  below 


Amount  claimed,  $ 


U.S. 
notations 


Object 
symbol 


Schedule  of  expenditures 


Sub- 
voucher 
No. 


U.S. 
notations 


MEMORANDUM   OF  TRAVEL  PERFORMED  UPON  TRANSPORTATION  REQUESTS 


Examined 
by 


Date  of 
travel 


No.  of 
ranspcr 

tation 


U.S. 
notations 


I  do  solemnly  * that  the  above  account  and  schedule  are  correct  in  all 

respects;  that  the  distances  as  charged  have  been  actually  and  necessarily  traveled 
by  me  on  the  dates  therein  specified;  that  the  amounts  as  charged  have  been  actually 
paid  by  me  for  traveling  expenses;  that  no  part  of  the  account  has  been  paid  by  the 
United  States,  but  the  full  amount  is  due;  that  all  expenditures  included  in  said 

•li)l 


402 


MANUAL   FOR   COURTS-MARTIAL. 


account  other  than  my  own  personal  traveling  expenses  were  made  under  urgent  and 
unforseen  public  necessity;  and  that  it  was  not,  for  the  reasons  stated  herein,  feasible 
to  have  such  expenditures  paid  directly  by  a  disbursing  officer. 

Payee:  

(Do  not  sign  in  duplicate) 


Subscribed  and  f 

of ,  A.  D.  191 


to  before  me  at ,  this. 


.day 


or  aflirm. 


t  Sworn  to  or  affirmed. 


I  certify  that  the  above  account  is  correct,  that  the  travel  was  performed,  and  that 
it  was  necessary  for  the  public  service. 


Approved  for  $. 
Date:  


Tide: 

Title: 


Taid  by  check  No. . . .,  dated ,191     ,  of . 

of  payee  named  above,  f or  $ 


.on ,  in  favor 


OB 

Received of in  cash,  the  sum  of. 

(Date) 
cents  in  full  payment  of  the  above  account. 


.dollars  and. 


H 

g 

8     B 

1 

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Q 

a    2 
2  S    | 
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3     *       ! 

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ifa 

APPENDICES. 


403 


WAR  DEPARTMENT 

Form  No.  350  a. 

Approved  by  the  Comptroller  of  the 

Treasury  April  20,  1914. 


[Sheet  2.] 
WAR  DEPARTMENT 


(Bureau  or  Office.) 


PUBLIC  VOUCHER. 


Voucher  No 

General  Account. 
Detail  Account . . 


REIMBURSEMENT   OF  TRAVELING    EXPENSES 

Appropriatioii Symbol $ . 

Appropriation Symbol $ . 

Appropriation Symbol $ . 

The  United  States,  To ,  Dr. 

Address:  


For  reimbursement  of  traveling  expenses  incurred  in  the  discharge  of  offi- 
cial duty  from ,191  ,  to ,191  ,  under  written  authoriza- 
tion from  the ,  dated ,191    , 

a  copy  of  which  is as  per  itemized  schedule  below 

Amount  claimed,  S 


U.S. 
notations 


Object 
symbol 

Date 
101 

Schedule  of  expenditures 

Sub- 
voucher 
No. 

Amount 

U.S. 
notations 

memorandum  of  travel  performed  upon  transportation  requests 

Examined 
by 

Date  of 
travel 


No.  of 
transpor- 
tation 
request 


U.S. 
notations 


MEMORANDUM  VOUCHER. 

(To  be  filled  in  and  retained  by  paying  officer) 


Vouchor  certified  by  . 
Voucher  approved  by 


Paid  by  check  No ,  dated 

favor  of  payee  named  above,  for  $. 


191     ,  of on 


Paid  in  cash by , dollars  and 

(Date) 
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404 


MANUAL   FOR   COURTS-MARTIAL. 


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APPENDIX  18. 


[Sheet  1] 
WAR  DEPARTMENT 


WAR  DEPARTMENT 
Form  No.  339. 
Approved  bv  the  Comptroller  of  the     QUARTERMASTER  CORPS 
Treasury  April  29,  iyi4 

PUBLIC  VOUCHER 


Voucher  No 

General  Account. 
Detail  Account.. 
PERSONAL  SERVICES— REPORTER 
APPROPRIATION :    PA  V.  ETC. ,  OF  THE  ARMY,  191      Symbol 

The  United  States  to ,  Dr. 

address  :   


Object 
Symbol 

Date 
191 

Amount 

U.S. 
Notations 

For  services  as  a  reporter  before  a convened 

at ,  pursuant  to  Special  Orders 

(Court,  board,  or  commission.) 

days  in  going  to,  in  attendance  on,  and  return- 

(Court,  board,  or  commission.) 

in  going  to  and  returning  from  the  court,  being miles, 

Total 

I  certify  that  as  s 
Dlaces  named  was  re 

bove  stated  I  rendered  the  services  named,  and  the  travel  between  tho 
quired. 

(Payee) 

EXAMINED 
BY 

(Do  not  sign  in  duplicate) 

(Account  to  bo  completely  filled  in  before  certification,  and  no  alteration  or  erasure  to  be  made  ther 

I  certify  that was  employed  by  me  as  a  reporter  for  a 

under  the  annexed  authority,  and  that  the  account  for  his  services 

as  stated  above  is  correct. 


(Title). 


Paid  by  check  No ,  dated ,191     ,  of 

favor  of  payee  named  above,  for  $ 


Received ,  191     ,  of ,  in  cash,  the  sum  of 

md cents,  in  full  payment  of  the  above  account . 


dollars 


406 


MANUAL   FOR   COURTS-MARTIAL. 


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WAB   DEPARTMENT 
Form  > 
Approved  by  i  he  Comptroller  of  the 
Treasury  April  i".>,  1914 


[Sheet  2] 
WAR  DEPARTMENT 

QUARTERMASTER   CORPS 

PUBLIC  VOUCHER 


Voucher  No 

General  Account . 
Detail  Account.. 


PERSONAL  SERVICES— REPORTER  Symbol. 

appropriation:  pay,  etc.,  of  THE  ARMY,  191 

The  United  States  to ,  Dr. 

address: 


Object 
Btmbol 

DVTE 
191 

Amount 

0   B. 

Notations 

For  services  as  a  roportcr  bofore  a convened 

at ,  pursuant  to  Special  Orders 

No ,  Department ,191    : 

(Court,  board,  or  commission.) 

days  in  going  to,  in  attendanceon,  and  returning 

(Court,  board,  or  commission.) 

In  going  to  and  returning  from  the  court,  boing 

Total 

MEMORANDUM  VOUCHER 

(To  bo  filled  in  ami  retained  by  paying  officer.) 

EXAMINED 

IV 

Voucher  certified  by. . 
Voucher  approved  by . 


Paid  by  check  No ,  dated  ... .,  191 

payee  named  above,  f or  $ 


APPENDICES, 
of.. 


407 
on ,  in  favor  of 


Paid  in  cash by  ,   dollars  and  cents. 

(Date) 

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2 

APPENDIX  19. 
REPORT  OF  INQUEST. 


,  191—. 

From : summary  court-martial. 

To:  Commanding  officer. 

Subject :  Report  of  inquest  over  body  of  ,  deceased. 

1.  Pursuant  to  your  letter   (or,  your  oral  instructions)  of  ,  I  viewed 

on  the day  Of ,  the  body  of ,  found  dead  at  this  post,  and 

have  examined  the  following  witnesses,  whose  testimony  is  appended  to  this 
report : 


2.  From  a  view  of  the  body  and  from  the  evidence  before  me  I  find  that 

at  or  about m.,  on  the day  of (or,  on  or  about  the 

day  of  ),  ,  a  of  ,  Regiment  of  (or, 

a  civilian),  died  a  natural  death  (or,  committed  suicide;  or,  was  accidentally 

killed   in  manner  and  circumstances  as  follows;  or,  was  killed  by  or 

by  some  person  or  persons  unknown,  in  manner  and  circumstances  as  follows : 
(or  otherwise,  as  the  case  may  be). 


409 


APPENDIX  20. 

GENERAL  ORDERS,  NO.  7,  WAR  DEPARTMENT,  1918,  AND 
PROCEDURE  THEREUNDER. 

<ii  nerai  Ordees,1  WAR  DEPARTMENT, 

No.  7.  |  Washington.   January   77.   1918. 

I Section  I,  General  Orders,  No.  169,  War  Department,  1917,  is  rescinded 

and  the  following  rules  of  procedure  prescribed  by  the  President  are  substituted 
therefor.    This  order  will  be  effective  from  and  after  February  1,  1918: 

1.  Whenever,  in  time  of  war,  the  commanding  general  of  a  territorial  depart- 
ment or  a  territorial  division  confirms  a  sentence  of  death,  or  one  of  dismissal 
of  an  officer,  be  will  enter  in  the  record  of  trial  bis  action  thereon,  but  will  not 
direct  the  execution  of  the  sentence.  His  action  will  conclude  witb  a  recital 
that  the  execution  of  the  sentence  will  be  directed  in  orders  after  the  record 
of  trial  has  been  reviewed  in  the  office  of  the  Judge  Advocate  General,  or  a 
branch  thereof,  and  its  legality  there  determined,  aud  that  jurisdiction  is 
retained  to  take  any  additional  or  corrective  action,  prior  to  or  at  the  time  of 
the  publication  of  the  general  court-martial  order  in  the  case,  that  ma; 
found  necessary.  Nothing  contained  in  this  rule  is  intended  to  apply  to  any 
action  which  a  reviewing  authority  may  desire  to  take  under  the  51st  Article 
of  War. 

2.  Whenever,  in  time  of  peace  or  war,  any  officer  having  authority  to  review 
a  trial  by  general  court-martial,  approves  a  sentence  imposed  by  such  court 
which  includes  dishonorable  discharge,  and  such  officer  does  not  intend  to  sus- 
pend such  dishonorable  discharge  until  the  soldier's  release  from  confinement, 
as  provided  in  the  52d  Article  of  War,  the  said  officer  will  enter  in  the  record 
of  trial  his  action  thereon,  but  will  not  direct  the  execution  of  the  sentence. 
His  action  will  conclude  with  the  recital  specified  in  rule  1.  This  rule  will 
not  apply  to  a  commanding  general  in  the  field,  except  as  provided  in  rule  5. 

3.  When  a  record  of  trial  in  a  case  covered  by  rules  1  or  2  is  reviewed  in 
the  office  of  the  Judge  Advocate  General,  or  any  branch  thereof,  and  is  found 
to  be  legally  sufficient  to  sustain  the  findings  and  sentence  of  the  court,  the 
reviewing  authority  will  be  so  informed  by  letter,  if  the  usual  time  of  mail 
delivery  between  the  two  points  does  not  exceed  six  days,  otherwise  by  tele- 
gram or  cable,  and  the  reviewing  authority  will  then  complete  the  case  by  pub- 
lishing his  orders  thereon  and  directing  the  execution  of  the  sentence.  If  it 
is  found,  upon  review,  that  the  record  is  not  suilicient  to  sustain  the  findings 
and  sentence  of  the  court,  the  record  of  trial  will  be  returned  to  the  reviewing 
authority  with  a  clear  statement  of  the  error,  omission,  or  defect  which  has 
been  found.  If  such  error,  o mission,  or  defect  admits  of  correction,  the  review- 
ing authority  will  be  advised  to  reconvene  the  court  for  such  correction;  other- 
wise he  will  be  advised  of  the  action  proper  for  him  to  take  by  way  of  approval 
or  disapproval  of  the  findings  or  sentence  of  the  court,  remission  of  the  sen- 
tence in  whole  or  in  part,  retrial  of  the  case,  or  such  other  action  as  may  be 
appropriate  in  the  premises. 

411 


412  MANUAL    FOB    COUBTS-MABTIAL. 

i  Any  delay  In  the  execution  of  anj  sentence  by  reason  of  the  procedure 
prescribed  in  rules  i.  2,  or  ::  will  be  credited  upon  any  term  of  confinement  or 
Imprisonment  Imposed.    The  general  court-martial  order  directing  the  execution 

of  the  sentence  will  recite  thai  the  sentence  of  < finemenl  or  Imprisonment  will 

commence  u>  run  from  a  specified  date,  which  date,  In  any  given  case,  will  be 
ilic  date  of  original  action  by  the  reviewing  authority. 

5.  The  procedure  prescribed  in  rules  l  and  2  shall  apply  to  any  commanding 
general  In  the  Beld  whenever  the  Secretary  of  War  shall  so  decide  and  shall 

direct    Buch  c manding  general   to  send   records  of  courts-martial   Involving 

the  'lass  of  cases  and  the  character  of  punishmenl  covered  by  the  said  rules, 
either  to  the  office  of  the  Judge  Advocate  General  at  Washington,  I  >.  <'..  or  to 
anj  branch  thereof  which  the  Secretary  of  War  may  establish,  for  final  review, 
before  the  sentence  shall  be  finally  executed. 

c>.  whenever,  in  the  judgment  of  the  Secretary  of  War,  the  expeditious  re 
df  i rials  by  general  courts-martial  occurring  In  certain  commands  requires  the 
Lshmenl  of  a  branch  of  the  .Indue  Advocate  General's  office  at  some  con- 
venient point  near  the  said  commands,  he  may  establish  such  branch  office  and 
direct  the  sending  of  general  court-martial  records  thereto.  Such  branch  • 
when  so  established,  shall  be  wholly  detached  from  the  command  of  any  com- 
ing general  In  the  field,  or  of  any  territorial,  department,  or  division  com- 
mander, and  shall  he  responsible  fur  the  performance  of  its  duties  to  the  Judge 
Advocate  General. 

[250.4,  A.  (i.  o.| 

II      There  is  hereby  established,  in  aid  of  the  revisory  power  conferred  on  the 
Advocate  General  of  the  Army   by   section   1199,   Revised   Statu) 
the  office  of  the  Judge  Advocate  General,  at    Paris,  Prance,  i 
ither  point  convenient  to  the  headquarters  of  the  American  Expedition- 
orces  in  Prance,  to  be  selected  by  the  officer  detailed  as  the  head  of  such 
branch  office,  after  conference  with  the  commanding  general  of  the  American 
Expeditionary  Forces  in   Prance.     The  officer  so  detailed  shall  be  the  Acting 
Judge  Advocate  General  of  the  American  Expeditionary  Porces  In  Europe,  and 
shall  report  to  and  be  controlled  in  the  performance  of  his  duties  by  the  Judge 
Advocate  General  of  the  Army. 

The  records  <>f  all  general  courts-martial  in  which  is  imposed  a  sentence  of 
death,  dismissal,  or  dishonorable  discharge,  and  of  all  military  commissions 
originating  in  the  said  expeditionary  forces,  will  be  forwarded  to  the  Bald  branch 
Office  for  review,  and  it  -hall  be  the  duty  of  the  said  Acting  Judge  Advocate 
General  to  examine  and  review  such  records,  to  return  t<>  the  proper  command- 
ing officer  for  correction  such  as  are  Incomplete,  and  to  report  to  the  proper 
Officer  any  defect  or  irregularity  which  renders  the  findings  or  sentence  invalid 
or  i  id.  in  whole  or  in  part,  to  the  end  that  any  such  sentence  or  any  part 
thereof  so  found  to  be  invalid  or  void  shall  not  be  carried  into  effect  The 
said  Acting  .Indue  Advocate  General  will  forward  all  records  in  which  action 
is  complete,  together  with  his  review  thereof  and  all  proceedings  thereon,  to 
the  Judge  Advocate  General  of  the  Army  for  permanent  file  (<'■  If.  C.  \£.,No.4.) 
[250.4,  a.  <;.  o.] 

B      ORDEB  ok   I  in;  Si  <  ki;i  \i:\    01    W  w:  \ 

JOHN  BIDDLH, 
i/'//o/  General,    Voting  Chief  of  Staff. 

OfFICIA]   : 

II.  I'.  .\li  CAIN, 

The    idjutant  General. 


APPENDICES.  4  1  3 

PROCEDURE  UNDER  GENERAL  ORDERS,  NO.  7. 

(Extract  from  a  letter  of  Instructions  from  the  Judge  Advocate  General  to  all  department 
and  division  Judge  advocates.) 

The  procedure  under  General  Orders,  No.  7,  War  Department,  1918,  was  es- 
tablished to  enable  the  War  Department  to  do  substantial  justice  In  those  cases 
in  which  it  is  found,  on  reviewing,  in  this  office,  the  records  of  trial  by  general 
court-martial,  that  persons  have  been  Improperly  or  Insufficiently  charged  with, 
or  convicted  without  substantial  evidence  or  upon  illegal  evidence  of  serious 
crimes  or  offenses,  before  dishonorable  discharge  or  dismissal  lias  become  an  ac- 
complished fact.  Cases  of  this  character  are  not  numerous,  but  a  case  occasion- 
ally arises  in  which  remedial  action  by  way  of  remission  of  sentence  with  an 
offer  of  restoration  to  duty  or  reenlistment  is,  at  best,  but  a  futile  attempt  to  do 
jus! ice  so  long  as  a  discharge  or  dismissal  which  has  been  finally  executed  can 
not  be  reached  and  set  aside  or  reversed,  but  must  remain  standing  forever 
against  the  record  of  the  accused.  Cases  where  the  death  sentence  is  imposed 
also  fall  within  this  class.  Croat  embarrassment  would  result  if  it  should  be 
held  that   a  death  sentence  was  illegal  after  the  same  had  been  executed. 

In  order  to  bring  about  the  necessary  cooperation  in  the  enforcement  of  Gen- 
eral Orders,  No.  7,  War  Department,  1918,  the  following  suggestions  are  made: 

(a)  In  all  records  of  trial  by  general  court-martial  falling  within  the  pur- 
view of  General  Orders,  No.  7,  War  Department,  1918,  to  wit:  Cases  involving 
a  sentence  of  death,  dismissal  of  an  officer,  or  dishonorable  discharge  of  an  en- 
listed man,  in  which  it  is  not  intended  to  suspend  the  dishonorable  discharge, 
the  department  or  division  judge  advocate  should  prepare  a  review  of  the  evi- 
dence in  the  case.  This  should  be  as  brief  and  concise  as  possible,  but  should 
outline  clearly  the  evidence  upon  which  the  conviction  must  rest.  A  copy  of 
this  review  or  summary  of  the  evidence  should  be  attached  to  the  record  to 
which  it  pertains  and  forwarded  for  lile  therewith  in  this  office. 

(6)  In  all  cases  in  which  the  execution  of  sentence  is  deferred  until  the 
record  of  trial  is  reviewed  iu  this  office,  judge  advocates,  prior  to  forwarding  the 
record  of  trial,  will  take  the  necessary  data  from  the  same,  draft  the  general 
court-martial  order,  give  it  the  date  of  action  by  the  reviewing  authority,  and, 
upon  receiving  notice  from  the  office  of  the  Judge  Advocate  General,  or  any 
branch  thereof,  that  the  record  is  legally  sufficient  to  support,  the  findings  and 
sentence,  cause  the  general  court-martial  order  to  be  published  in  the  usual 
form.    This  will  make  unnecessary  the  return  of  the  record. 

(c)  The  action  of  a  reviewing  authority  upon  a  record  of  trial  which  is  to 
be  forwarded  to  this  office  for  review  before  the  execution  of  sentence  should 
be  entered  in  substantially  the  following  form,  the  necessary  changes  being 
made  to  conform  the  action  to  the  facts  of  each  particular  case: 


(Place  and  date.) 

In   the  foregoing  case  of the   sentence   is  approved    (but    the   period   of 

confinement    Is  reduced   to  ).     The  is  designated   as  the  place  of 

confinement.  The  execution  of  the  sentence  will  he  directed  in  orders  as  of 
this  dale  after  the  record  of  trial  has  been  reviewed  in  the  office  of  the  Judge 

Advocate  General,  or  a  branch  thereof,  and  its  Legality  there  determined.  Juris- 
diction is  retained  to  take  any  additional  or  corrective  action  that  may  be  found 
necessary  prior  to  or  at  the  time  of  the  publication  of  the  general  court-martial 
order  in   this  case. 


Commanding. 


414  MANUAL    FOR    COURTS-MARTIAL. 

(d)  when  the  record  of  tri;ii  in  any  case  is  found  Legally  Insufficient  to  sup- 
porl  Un-  findings  and  sentence,  th>>  record  will  be  returned  for  the  necessary 
correOTve  action,  which  will  be  entered  on  the  record  in  substantially  the  fol- 
lowing form,  the*  necessary  changes  being  made  to  conform  the  action  to  the 
facts  of  the  particular  case : 


( Place  and  date.) 

In  the  foregoing  case  of under  the  jurisdiction  retained  in  the  action 

dated      -  — ,  the  following  corrective  action  Is  taken. 

(Action.) 

As  thus  modified  the  sentence  will  be  duly  executed, , 

is  designated  as  the  place  of  confinement  (Or  such  final  order  by  way  of  dis- 
posing Of  the  case  as  the  action  may  require.) 


Commanding. 

When  the  additional  or  corrective  action  outlined  above  has  been  taken, 
the  necessary  changes  will  he  made  in  the  general  court-martial  order  prior  to 
the  publication  of  the  same.  It  is  needless  to  say  that  any  prior  action  which 
has  been  changed  or  nullified  by  subsequent  action  will  not  be  included  in  the 
general  court-martial  order  as  puhlished. 

(/)  The  letter  of  advice  sent  from  this  office  will  give  in  each  case  the  court- 
martial  record  number  given  the  record  upon  its  receipt  in  this  office.'  It  is 
desired  that  the  printed  copy  of  the  court-martial  order  he  made  to  carry  at  the 
end  thereof,  in  brackets,  the  number  reported  by  this  office,  thus:    [J,  a.  G.  O. 

No.  .|     live  copies  of  the  general  court-martial  order  in  each  case  will, 

when  published,  he  forwarded  to  this  office  as  promptly  as  possible.      (£'.  J/. 
<'.  .1/..  No.   ',.) 


INDEX. 

[References  are  to  paragraphs,  except  who  !  by  the  letter  "P"  preceding  tko  number, 

and  Art.  !es  ol  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 


Par. 

Abandon,  defined p.  226 

Abandoned  propi  rty,  dealing  in 430;  A.  W.  80 

Abandoning  command  to  enemy -125;  A.  W.  75 

Abandonment  of  command  by  commander,  subordinates  forcing 426;  A.  W.  76 

Abatement,  Pleas  in.    See  Courts-martial,  Pleas. 
Absence: 

Effect  of  absence  of  member  of  court-martial 93 

Of  appointing  authority,  who  may  act  during 369 

Of  member  of  court-martial ,  procedure  with  reference  to 85 

Absence  wi  tli  leave,  effect  of,  on  power  of  commanding  officer  to  appoint  general 

court-martial 18 

Absence  withoul  leave 412;  A.  W.  61 

Continuance  of,  presumption  as  to 284 

Continued,  presumption  as  to  intent 2S4 

Failure  to  rep  rl  for   routine    duty   during   absence   without   leave,    how 

charged 66 

How  proved 284 

Punishment   for 66, 149,  281,  283-284,  412;  A.  W.  61 

Specifications  for p.  339 

Time  lost  to  be  made  good 38n;  A.  W.  107 

Abuse,  defined p.  244 

Accomplice: 

Competency  1  >f  accused  when  testifying  against 217 

•  of  turning  State's  e"\  Ldence 216 

Accomplices,  statements  of  conspirators  and,  when  admissible 224 

Account.     Si .  Books  of  Account;  Evidence,  Documentary. 

Accounts,  how  proved 237 

Accouterments,  losing,  spoiling,  etc 74  (c),  281,  299,  434 ;  p.  344 ;  A .  W.  84 

•  officers  or  soldiers,  triable  by  court  of  inquiry 452 

Accused: 

ittal  of,  by  summary  court-martial,  record  of 351  (i) 

Acquittal  of,  release  from  confinement :'.. 

Action  by  reviewing  authority  when  accused  is  transferred  to  another 

department 375 

Admissions  by,  of  facts  material  to  prosecution,  use  of  by  court 292 

Appeal  by,  contents  of 

Appeal  by,  to  superior  authority 333,  335;  A.  W.  104 

Am -t  of 54,  120;  A.  W.  69 

Aswi;  iwn  behalf 214 

Challenge  by,  only  for  cause  stated  to  court li'ii 

-.  time  limit  for  serving 54,  77,  SO;  A.  W.  70 

Competency  of,  when  testifying  against  an  accomplice 217 

■  t  of,  during  trial 86 

Confession  to  superior  inadmissible  unless  accused  previously  warned 

Confinement  of 420:  A.  W.  69 

Confronted  with  witness,  whoa  to  be 165;  A.  W.  25 

Control  of,  bj  court-martial  during  trial 

53915°— IS 29 

415 


41G  ex. 

I  letter  "V"  preceding  the  m 

mber.] 

■ 

court-mart  u  123;  A.  W.  17 

courl  of  inquiry 

amary  court 

i  i:il  by  court-martial 80 

eked 

examination  of -1-1 

90 

214 

menl 111.  155;  A.  W.  21 

of  turning  S1  ite't  e>  idence 216 

Entitled  to  copy  of  record  of  trial  by  general  court-martial.  .117.  354-357;  A.  W.  1 1 1 

avictionsof 349;  p.  L68 

lartial p.  ; 

dnatioD  of  witnesses  by,  in  summary  court 

Freedom  ofej  pr<  ssion  in  Btatemenl  to  court 291 

hed  beyond  reasonable  doubt 296 

Guilty  of  general  rather  than  specific  article 

•  to  prepare  for  trial  by  general  court-martial 80 

How  brought  before  the  courl vS 

How  described  in  charge  and  specification 7 1 

II.  •..  name  should  be  pleaded. 74 

ity,  procedut  te 219 

no1  ordinarily  to  be  tried  in ^s 

Person  in  sale  of  provisions    437;  A.  W.  87 

mber  of  court-martial  as  witness  alter 131  (d) 

'unary  court 



tatemenl 216 

lure  where  he  fails  to  testify 

■ 1  '  W.  21 

Re]  •'  arrest,  when  acquitted,  or  when  convicted 

qoI  include  dishonorable  disci  nfinement...    332  a 

ixed  to  Bubmil  to  physical  «  samination,  not  self-crimination.  .  .  .  236  (a-c) 

i    opy  of  charges 79 

Righl  of,  to  copy  of  proc lings,  where  there  is  joint  trial 

i ^08 

Right  of ,  to  demand  trial  martial 333,  334;  A.  W.  L04 

i  onfidential  to  which  prosecution  has 

-  •"• 

■  lunsel  and  witnesses U0 

i  mi  I...  In...  character  evidence ■ 205 

of,  upon  investigation  of  charges 76 

.  ill,  referent  e  to  <-\  id<  ■  porl   of  medical  board    re 

nity 219 

Second  trial  of,  for  same  offense '  19;  A.  W.  io 

Selection  of  ]08 

' 

Si   tementsand  arguments  of,  at  close  of  trial 

To  be  inform  ord 117 

i  Mil.  .ri 1 1  to  be  worn  in  court s:' 

When  be  may  be  tried  in  uon oS 

Where  seated  in  courl 83 


INDEX.  417 

[References  are  to  paragraphs,  except  where  paces  :a.  ing  the  number, 

and  Articles  of  War  are  Iodic  irs  "A.  W."  preceding  the  number.] 

Accused  persons:  Par. 

Refusal  to  aid  in  apprehending p.  224 

Refusal  to  deliver  to  civil  authorities p.  224- 

Convening  authority  of  general  or  special  court-martial  must  no1  be  ac- 

14,  21 

Counsel  for,  before  court  of  inquiry 463 

1 17,  22 

inelligible  as  member  of  <  ourt-martial,  general  or  spe<  ial 6, 129;  A.  W.  8,  9 

.    Judge  advocate  should  not  be 102 

.May  be  summary  court-martial  when  only  officer  present  with  a  command.  6 

May  not  appoint  general  or  special  court-martial  to  try  accused 14, 21 

Not  to  be  member  of  court-martial,  general  or  special 6, 

I  i   L9,2]   24,  129-131,  A.W.8,9 

Whether  <  onvening  authority  is,  how  raised  and  determined 17 

Wheti  %  authority  is,  is  question  of  fact 17 

Whether  member  is.  how  raised  and  determined I :;0 

Whether  member  is,  is  question  of  fact 130 

Acquittal: 

A  pproval  or  disapproval  of,  by  appointing  authority 369 

Former,  for  same  offense,  how  proved 274 

( >f  accused  when  jointly  tried 301 

Record  of,  genera!  and  special  courts-martial p.  177  (41),  358 

summary  court 351  (j) 

judge  :'dvc 

Administration  of  oaths  for  military  purposes,  etc 13S  (6);  A.  \Y.  1 L4 

Powers  of  notary  public  in  foreign  {daces  where  A  rmy  is  serving  '    W.  1 14 

Action: 

After  promulgation  of  sentence  of  general  or  special  court-martial 101-404 

hority,  must  be  in  person 376 

By  reviewing  authority,  record  of 370 

By  reviewing  authority,  when  accused  is  transferred  to  another  depart- 
ment   

Additional  cl 

I 73 

1  distinguished  from  consolidated  charges 73 

When  tried  separately 73 

When  tried  with  original  charges 73 

Adjournment  of  court-martial 81;  p.  355 

At  close  of  1  rial 7l  355 

During  trial 

Adjutanl  of  any  command: 

Administration  of  oathsfor  military  purposes,  etc 188  (6) ;  A.  W.  114 

ublic  in  foreign  places  where  Army  is  serving.    L38(i  ;  LW,  114 
Administrative  rules,  under  Executive  order,  prescribing  maximum  pui 

349;  p.  169 

Admissions: 

Against  i  226 

Against  penal  interests  of  parties  other  than  accused 226 

cused 226  292 

Advisi  to  desert 410;  A.  W.  59 


418  INDEX. 

Indlcab  d  by  ';  »  a&xx, 

w  ■■  preceding  the  Dumber.] 

Par. 

[uadron,  when  a  detachmenl  for  discipline  28 

Affidavits,  not  admissibL  -,i!l 

Affirmation. 

men!  todefraud  United  Stater  through  false  claims 144    p.2  5;A.W.94 

Alarm-   false,  by  officer  or  soldier  in  camp,  garrison,  or  quartera 347, 

;n:  A.W.75 

civilian  witnesses  in 185  (6) 

i  in  either  military  or  civil  courts  in,  is  bar  to  trial  in  other  for  same 

i 

bo*  pleaded 71  W 

Allotments,  compulsory,  can  not  be  affected  by  court-martial  sentence 311 

Allowances,  forfeiture  of  pay  and 324 

Alternat  ive  pleading,  improper 

dments,  of  i  barge   by  judge  advocate,  when  proper 97 

Ammunition: 

away 425 :  p.  228 ;  A.  W.  75 

Wasting  of 434;  p.  344;  A.W.84 

Ammunition  train,  when  a  di  tac'iiucni  i"o;  <li.-<iplinary  purposes 28 

J  to  cr  il  i  ourts  from  judgments  of  courts-martial,  not  permitted 33 

Appeals  from  disciplinary  punishments 333,  335;  A.  W  .  104 

Appointing  authority: 

Set  also  Reviewing  authority;  Courts-martial,  general,  Bpecial,  summary. 

Action  by,  as  to  absence  of  member  of  court-martial 85 

i 369 

advocate  and  members  of  court-martial 81 

Desi  mates  place  and  time  of  meeting  of  court-martia] 81 

Discn  personnel  of  court-martial 12  (o) 

i  to  order  courl  of  inquiry 447,  i  18 

to  place  officers  or  Boldiers  in  arrest 47 

To  determine  time  an  I  place  of  meeting  and  ('(imposition  of  court-martial .        81 
Appointing  officer,  pow<  r  to  change  membership  of  court-martial  during  a 

t  rial 

Apprehension  of  accused  persons 424;  p.  22 !:  A  W.  .1 

priation  of  captured  public  property,  wrongful 129;  A.  W.  79 

Approval 

i  >f  pari  of  finding  of  guilty-  lesser  included  offense 377  (a) 

atence 371 

.  effect  of : 372 

-  ace,  manner  of t'"-5 

Of  a  atence  of  summary  court,  when  necessary 44;  A.  W.  14 

<  »i  sentences  Ln  v.  hole  or  in  part '■'"''■  A-  "■  '' ' 

Powei    incident  to  power  of,  of  sentences 377 

Approval  of  trial  cases.    Set  Reviewing  authority. 

Appro>  Lng  authority,  power  of  to  confirm  sentence 3/8 

Arguments: 

By  accused  to  court 293 

By  accused,  contents  of 

I'. ,  coun  ■  I  to  courl -K:> 

Bj  judge  advocate  to  court ~"^ 

Argument,  to  court,  when  required  to  be  written Ill 

!,;■,  fees  and  mileage  of  civilian  witnesses  in 


93 


INDEX.  419 

[References  arc  to  paragraphs,  except  where  p  ted  by  the  letter  "  P       r&     ling  the  number, 

and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Pa;. 

Arms,  casting  away ;25:  p.  228;  a.  W.  75 

Army  field  cl<  rks,  subjeel  to  Articles  of  War 

Arraignment: 

Pleas  or  refusal  of  accused  to  plead 144,  145,  L55;  A.  W.  21 

Time  of,  on  additional  charges T3 

Arrest: 

Abuse  of  authority  to  arrest 51 

Authority  of  president  of  court-martial  to  order 89 

Brea*  hof 420;  p.  2  L8;  A.  W.  69 

Control  of  court-martial  as  to 47  (c) 

Defined 46  (c);  p.  218;  A.  W.  69 

Disobedience  of  order  into,  by  one  engaged  in  quarrel,  fray,  or  disorder 

p.  217;  A.W.68 

Duration  of 54,  77,  80;  A.  W.  70 

Effect  of  failure  to  arrest  upon  j urisdiction  of  court 46  (n) 

How  effected 48 

Limit  of  duration  of,  without  trial 77:  A.  \Y.  70 

Limits  of 46  (c);  A.  W.  69 

Of  accused 420;  A.  W.  69 

Of  civilian  charged  with  offense,  when  proper 420;  A.  W.  69 

Officer  in,  may  prefer  charges 63 

Of  medical  officer,  when  authorized 51 

<  »f  offit  er  charged  with  offense  when  proper 420;  A.  W.  69 

Of  officer  without  preferring  charges,  procedure  on 50 

Of  ethers  than  officers  or  soldiers,  when  authorized 46  (c),  A.  YV.  69 

Of  soldier  charged  with  offense,  when  proper 420;  A.  W.  69 

Of  soldiers,  when  and  how  authorized 52 

Penalty  for  breaking 46  (c) ;  A.  W.  69 

Persons  accused  of  an  offense  under  Articles  of  War 46-57, 420;  p.  340;  A.W.  69 

Procedure  where  officer  improperly  held  in 54 

Release  from,  does  not  prevent  trial 77;  A.  W.  70 

ise  from,  of  officer,  when  required 54;  A.  W.  70 

Status  of  noncommissioned  officer  in 53 

Beer  in 49 

When  arrest  of  officer  authorized 46  (a);  A.  W.  69 

When  arrest  of  soldier  authorized 46  (6);  A.  W.  69 

When  authorized 46;  A.  W.  69 

Who  may  order -17 

Arson: 

Defined p.  254 

Offense  of 35,  4  1:5:  p.  346;  A.  W.  93 

Punishment  for 443;  A.W  93 

Statutes  of  Limitations  as  to L49 

Arii<  lee  of  War: 

I  ertain  articles  to  be  read  to  enlisted  men 282;  A.  W.  1 10 

I  arm  and  pine,  .lure  where  several  specifications  under  one  article 72 

Form  of  charges  and  specifications  for  violation  of  the  following  articles: 

54th  to  69th  and  71st  to  9Gth pp.335  352A 

Interpretation  of  A.  W.  29  as  prescribing  rule  of  evidence 7  I 

0  ins  i.  how  charged 7  1  (p) 

Persons  subject  to 4 

Persons  subject  to  naval  jurisdiction  not  usually  subject  to 1  (d)  n 


420 

Bdby  thi  niraber, 

■    •■  •■ 

War     Continued.  Par. 



W.  5  and  6  rtial 



Wl  

P 





' ,!l 

ii. -i 

416;  pp.211-212;  A..W.  65 

Lor  officer,  how  punished 41,415;  A 

ment,  etc W.  96 

Wit!  443;  p.  266;  A.  W.  93 

With  intent  to  commit  manslaughter 

With  intent  to  commit  murder 

With  intent  to  commit  rape p.  270 

With  intent  to  commit  sodomy 

With  intent  to  do  bodily  harm J 43;  p.  272;  A.  W.  93 

With  intent  to  roh P-  27° 

I  and  battery 5;  A.  W.  96 

ment  of  pay,  courts-martial  can  not  order 325 

lit  judge  adv 

ite. 

Administration  of  <  ■ W.  114 

of lo: 

of W.  11G 

public  in  foreign   places   where    \.rmy  is  Berving. 

k.  v 

|nr,:    ;( 

Whenandhi  I Ii:';'    *••  W.  11 

rt •'• |M 

•  -  -  -   159;  A.  W.  22 

Warrant  of ,  form P  :1>: 

Win,  .procedure  »rpus  issuing  out  of  State  court.  478(a) 

mp1 : 

I p-213 

To  create  mutiny 417;  A.  W.  66 

dition 417;  A.  W.  66 

'"  W.  58 

Attend  luctis  being  investigated  by  court  of  inquiry....      462 

Attei 

Bow  procured  if  civilian 164;  pp.  384  385 

procured  if  military "'■' 

Attorn' 
Authentication  of  n 

( )t  .curt  of  inquiry '  ;•* 

neral  courts-martial,  by  whom  made 354 

Autrefois  acquit,  <  rapport  plea  of 

d  imed ^(n):  A-  w-  l 


INDEX.  421 

and  Articles  of  War  a  W.1' preceding  the  number.] 

;  ■ 

ed p.  284 

Included  in  term  '•company" 1  (n);  A.  \V.  1 

Beginning  mutiny  or  sedition,  denned | 

idence  rule 237 

In  proof  of  former  acquittal  or  conviction 274 

1  n  proof  of  pardon 273 

as  affecting  compel  libility  of  witness 213 

-jl  to  appear  or  testify,  punishment  for 170;  A.  "W.  23 

-.  civilian  witness,  procedure  to  obtain !  66 

Books  of  account: 

Admissibility  as  evidence,  rule  as  to 244 

Foundation  necessary  for  introduction  of 244 

Branding,  prohibition  of,  as  punishment :  A .  W.   41 

h  of  arresl 420:  p.  218;  A.  W.  69 

Breaking,  defined p.  256 

.  wrongful  taking  of  money,  etc.,  on  muster 281,  407 ;  pp.  197,  337;  A.  W.  56 

Brief: 

Form  of,  to  be  filed  with  return  to  writ  of  habea  p.  393 

( >f  record  of  general  and  special  court-martial 3 

Brigade  commander,  powers  and  responsibilities  of 29 

Burden  oi  pi 

Iso  E\  idence. 

-;ies - 288 

!  irosecution 



War  Department,  evidence # 

Burglary: 

Delined ]'■  255 

iseof 143;  A.  W.  93 

443;  p.  346;  A.  W.  93 

te  of  limitations,  as  to 149 

Cadets: 

uiation  of  sentence,  when  required 378;  A.  W.  48 

martial ' 41  n 

Not  triable  by  summary  court 43;  A.  W.  14 

ar 

military  low 4, 13,  38;  A.  W.  2 

Calif'  n  nia,  fees  and  mileage  of  civilian  witnesses  in 185  (c) 

subject  to  military  law 4,  9-10, 13, 3S,  74    fj");A.W.  2 

.  trial  in  either  military  or  civil  courts  of,  is  bar  to  trial  in  other  for 
149  (3d);  p.  G9 

•  ;i|  dti 

A.  (used  must  be  confronted  with  wit  lialfor 165;  A.  W.  25 

Dep  ritions,  introduction  of  by  defense,  in  trial  for 264;    \ .  W.  25 

Dep<  aitions  may  not  be  introduced  by  prosecution  in  trial  for 263;  A.  W.  25 

!;.  cords  of  courts  of  inquiry  admissible  for  defense  only,in  trial  for.  272;  A.W.  27 
I  rider  Arfei  lea  of  War,  enumerated 

Captured  property,  dealing  in 430;  A.  W.  80 

Capturrd  public  property: 

To  bee  ice 4-->-  A-  Vv  •  7'' 

Wrongful  appropriation  of ^-!l ;  A.  W.  i  9 


4  2  2  INDEX. 

Casting  away  ammunition 425;  p.  228; 

425;  v- 228;  -'■•  w.  75 

i         oga  mutiny,  defined i 

.  defense.. 270 

Challi 

»f  tie  vote 90 

Of  judge  advocate  not  permissible 102 

Of  members  of  court-martial  by  accused L20  L31.137;  A.  T 

Of  members  i  f  courl  of  inquiry 

•  joint  charges  preferred ,;'> 

Challenge  to  duel: 

Defined I'-  ~^ 

Qowredgeof p.  248 

hment  for  taking  part  in  or  promoting 441;  p.  345;  A.  \V.  91 

Chaplains,  n  1  usually  detailed  as  member  of  court-martial G 

Charai  I 

■  f  discharge  as  proof  of  good  charai  fcer 

i 

How  affected  by  the  rule  as  to  motive 

Received  by  summary  court 351  (e) 

.  ire,  to  prove  good  character 271 

When  of  value 205 

I       rges: 

Additional  charges;  Pleading. 

nutation  of I") 

onal ■ ";; 

isheet,formof P-  ■'"' 

lidation  of  charges  distinguished  from  additional  charges 73 

Ldation  of,  for  Berious  and  min  advisable 67 

LdatioB  of,  when  advisable 67i  73 

indorsement  I'm  warding ^   <(> 

<\  py  to  be  furnished  accused 54,77,79,80;  A.  VY.  70 

i  upon  accused  within  eight  days 77;  A.  W.  70 

i   ns  and  amendments  of,  by  judge  advocate 97 

Defined 61 

Different  aspects  of  same  act  or  omission  charged  as  two  or  more  offences, 

how  punishmenl  imposed --■        66 

Disposition  of  -..pics  of ,:i 

Duplicate  d  of,  for  same  act,  to  be  avoided 66 

Duties  of  judge  advocate  as  to  drawing  and  correcting ■■ 

o  ,   statementof,  when. to  accompany 7'>:  P-  333 

7,/ ;  A,,r:;':'1".;! 

rticlee  of  War P- 33°  ■■■'- 

md  by  whom  forwarded  to  superior  authority 75,  76;  p.  333,  334 

l  _ 

ii    .    bated '''  W 

submitted ""» 

a  of  and  action  upon 7(l'  "  ;  P-  A-A 

Of  drunkenness,  findingsunder _ "(" 

Memb  d  signing,  when  accuser L30;   V.w.8,9 

,.  Laid  undera  specii  c  article  of  war,  whenever  posaib  e --•  74  (e) 

pared  in  triplicate 75S  P-  333 


INDEX.  423 

[■References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  the  Dumber, 
and  Articles  of  War  are  indicated  bj  the  letters  "  A.  w."  preceding  the  number.i 

Charges— Continued.  r;.r. 

Numbering  of 72 

Pleading  came  of  accused  in 74  (h-i) 

Procedure  for  submitting. 75 

Procedure  on  arrest  of  ofheer  without  preferring 50 

Procedure  when,  made  by  civilian  <  an 62 

Receipt  of  and  inspection  by  judge  advocate -p  353 

Relation  of  specifications  to 61,  74  (6) 

Sen  ice  of,  upon  accused 80 

Signature  of  i  ifficer  preferring,  to  be  copied  into  record 64 

Sub  mission  of 75 

Sul  anission  of,  form  for p  .333 

To  be  accompanied  by  evidence  of  prior  convictions  within  one  year 

past p.  333 

Trial  upon  consolidated 67 

Upon  confession,  when  to  be  made 70 

When  accumulation  of,  advisable 65 

When  original  and  additional  should  be  consolidated 73 

When  required  to  be  served  five  days  before  trial 80 

\\  hen  to  be  accompanied  by  statement  of  evidence p.  333 

Who  may  initiate 62 

Who  may  prefer 63 

Charge  sheet ,  to  be  used  in  preparation  of  charges 75;  p.  333 

Child .  when  competent  as  witness 210 

Circumstantial  evidence: 
<>  Evidence: 
Defined 202,  203 

Civil  authorities: 

Vrrest  of  deserters,  delivery  into  custody  of  military  authorities. .  58-59;  A.  W.  106 

Authority  to  arrest  deserters 58;  A.  \V.  106 

eration  with,  by  military  authorities 35 

Delivery  of  accused  persons  to 35.  424 ;  A .  \Y.  74 

Delivery  of  persons  subject  to  military  law  to 35 

Effecl  1  if  delivery  of  military  offender  to 35 

Civil  courts: 

( !oncurrent  jurisdiction  with  military  courts 35 

Former  testimony  in,  proof  of 275 

Forumr  trial  in.  when  bar  to  second  trial 274 

Plea  of  former  trial  in,  evidence  of 149(3),  274;  A.  W.  40 

Powers  of,  over  judgments  of  courts-martial ;;.; 

When  accorded  priority  of  jurisdiction 35 

( Jivilian  witnesses.    See  Witnesses. 

Chili 

I  n  ( lovernment  employ,  as  witnesses I  - 1 

May  initiate  charges t\l 

\..t  in  ( lovernment  employ,  as  witnesses 

Witnesses,  aliidavit  as  to  correctness  of  voucher L87 

W'ii  ih  sscs.  contents  of  vouchers  for  payment  of 187 

Witnesses   form  of  subpoena  summoning 

Witnesses  in  several  dials  on  Bame  day 188 

Wiiti.  -  ahfrs 190 

Witnesses,  payment  for  return  journey 186 


424  in] 

i 

g  the  number.] 

Witn< 

Win;.  delivered  to ISO 

I 

mil  

Eicei  or  otto 

; 

am  (1  for  acl  done 184;  A.  W.  1 17 

I 

M  1:  p.  277;   ' 

in<  onnecl  ion  with 444;  p.  276;  A.  W.  94 

a   with 44  !:  p.  277;  .'l 

' 

pplication  for 

i !  martial  or  meml  <t  thereof 

Qorable  discharge I 



Dutyi  mi 

Ivocate  during L01 

Hi 

p.  239 

in I  - 

i 

Abandoning 425;  A.  W.  75 

Authority  th  of  permanenl 

comn  al 10 

emy -125;  A.  W.  75 

d  by  officer  in  arrest I 

al  court-martial  is  attribute  of 18 



10-12;  A.  W.  1-0 

Lied  to     urrendtr  or  abandon  command  by  subordinates....  426; 

A.  \Y.  76 
<  Mini'  ird : 

' pp.  !_'  1 ! >  1220 

Dutj  dkeep  prisoners  and  toreporl  thereon 55;  A.  \Y.  7  1,  72 

or  keep  prisoners 421;  A.  W.  71 

ire  i"  i  mi i inn  sentence  of  dismissal  In  time  of  war. . . 

pp.41]    111 

i  and  proced  ate  death  sentence  in  i  une  of  war 

pp.41]    111 

Return  to  .mm  of  habeas  i  orpus  issued  in  Philippine  Islands 480 

Commanding  offi 

26,448;  pp.  216 

Disciplinary    power   of 333-386;    A.    \V.    mi 

Disn  i -l  II:  1>.  339;  A.  W.  63 

Di  i  rati,  ii  ol  power  t')  appoint  general  court-martial 18 


index.  425 

[References  are  to  paragraphs,  except  where  |  |  he  Letter  "P"  preceding  the  number, 

and  Articles  of  War  are  indicated  by  the  letters  '  A.  W."  ,  i 

Commandii  mtinued.  Par- 

Duties  of ,  where  general  com  is,  or  is  likely  low 

a  quorum 7  (a) 

Duty  to  make  recommendations  to  appointing  authoj 

'1  courts-martial 

Duty  with  respect  to  appointment  of  members  of  genera]  <    m  .7  (a) 

Eligibility  for  appointm  mmary  court-martial 

Eligibility  for  membership  in  special  court-martial  24 

c  to  place  officers  in  an  isl 47 

Reparation  for  damage,  duty  to  provide  for 4:;'.);  p.  246;  A.  W.  89, 105 

Report  of,  upon  arrest  of  officer  without  charges 50 

Sale  of  victuals  or  other  necessaries,  not  to  be  personally  interested  in 

p.  314;  A.  W.  87 
Commitment  of  prisoner  to  provost  marshal  or  commander  of  guard,  procedure 

W.  7 1  . 

Common  law.  rules  of  evidence,  how  far  applicable  to  courts-martial 198,199 

utation  of  sentences 384 

Company,  defined 4  n-  A.  W.  1 

Conn 

Extra  for  clerical  duties,  when  forbidden 118 

porter  of  court-martial 113 

<  'oujj.laint  of  wrongs  to  officer  or  soldier  by  commanding  officer,  procedure  for. . .       485 

alment,  defined p.  197 

Concurrent  jurisdiction.     See  Jurisdiction. 
Condonation: 

(  k>nsl  motive,  defined 151 

Constructive,  plea  of  in  bar  of  trial 1 51 

Conduct: 

Discrediting  the  military  service 446 ;  \ .  W.  96 

Insubordinate,  toward  noncommissioned  officer 416 

Prejudicial  to  good  order,  .-to 35,71,74  (e),  90.  17:;.  2:;:  >  In,  415, 

423,  446,   160;   p  i;   A.  \V.  96 

Unbecoming  an  officer  and  gentleman 4oa.  71  308- 

PP-    - 
Conf<  ace. 

Privileged  communicatio 

Confinement: 

46-67,77,  120-422;  0.  340-341;  A.  W.  69-73 

At  hard  labor 

iceof 

i  beginning  sentence  of 401 


Defined. 


p.  218 

p        of,  by  whom 

lience  of  order  into,  by  one  engaged  in  quarrel,  fray,  or  di  order..      119; 

p.  217;  A.  W.  68 

of  failure  to  arrest  or  confine  upon  jurisdiction  .4*  courl 46  n 

•  from p  o|g 

Bard  labor  without 

In  disciplinary  barracks,  of  gei  397 

In  disciplinary  barracks  of  ]  enced  to  di    1  and 

to  confinement  oot  in  a  ]  398 

In  penitentiary,  when  authorized 

In  post,  when  directed 


426  INDEX. 

bted  by  tlie  letter  "P"  preceding  ttonamber, 
itedbj  the  letters  "A.  W."  preceding  the  number.] 

i  nued.  v-'-r- 

Limit  of  <  of ,  without  trial 77;  A.  W.  70 

i 382 

lian  charged  with  offense 120;  A.  W.  69 

130 

46  (a),  420;  A.  W.  69 

<  )f  pen  on  Bubjecl  to  military  law,  when  authorized 46  (c);  A.  W.  <;;> 

Of  soldier  charged  with  off  ense ,  120;  A.  W.  69 

iier,  when  and  how  authorized 52 

16  c);  A.  W.  <;:» 

Place  of ,  change  in 389 

l'i:i< f,  designation  of 394 

m 332  (a) 



To  limits  "i  post  or  reservation 319 

•  onfinement  of  < >f li<<-r  authorized 46  (a);  A.  W.  69 

When  confinement  of  soldier  authorized •!<;  (6);  A.  W.  69 

Without  hard  labor,  .should  not  be  imposed 31 1  n 

Confirm; 

by  approving  authority,  effect  of 378 

■  of  death 

itence  of  dismissal  of  officer 

Oft  wer  to  confirm  that  part  of  finding  of  guilty  of  a  particular 

lvi  Lves  Sndingof  guilty  of  lesser  included  offense..  ::77  (a),  379  (a) 

.  power  to  confirm  the  whole  or  any  part  thereof —  377  (6),  379  (6) 

is  required,  powers  incident  to.  377-379, 3S6, 388;  A.  W.  48,  49 

tful  words  concerning 113;  p.  339;  A.  \Y.  62 

Conspiracy: 

fraud  United  States  through  false  claims -Ml:  p.  275;  A.  W.94 

To  desert,  triable  on  joint  charges (i!) 

oaents  of  accomplices  and,  when  admissible 224 

LCtive  breaking,  d< 'lined p.  256 

<       tractive  condonation.    (See  Condonation. 

pardon;  evidence  to  support  plea  of ,  in  bar  of  trial 273 

Jar  officers  of  United  States,  powers  of,  when  granted  to  Army  officers..  I 

A.  W.  1 11 
('•  atempl : 

irity  of  con  its  of  inquiry  to  punish  for 460 

Authority  of  courts-martial  to  punish 173  (a) 

active,  defined 173  (c) 

.  1  of  witness  to  answer 235 

: ,  punishment  for 17:'.;  A.  W.  32 

lefoT J 7:i  yii) 

for  punishment  for L73    I) 

Toward  Federal  or  State  officials  by  officera  or  soldiers 413;  A.  W.  <;2 

rds: 

Defined 413;  p.  206 

Relating  to  Federal  officers,  punishment 413;  p.  339;  A.  W.  62 

i    .   .    S&  this  tiil<-  Courts-martials. 

:  ■  rsonal  interest  of  officer  in,  forbidden 40  n,  137;  A.  W.  87 

I  •    'i.    8  ■  K\  idence;  Trial;  Witnt 

authority: 
8a   Appointing  authority. 
Sec  <•  '   general,  special,  summary. 


INDEX.  427 

(References  are  to  paragraph*,  except  where  pagMMC  indic-i'ed  by  the  utter  "  1"'  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

•'ar. 

Convening  order  of  court  of  inquiry 455 

Conviction: 

■Former,  for  same  offense,  how  proved 274 

Of  accused,  vote  necessary  and  how  taken 90,  295;  A.  \V.  31,  43 

Of  lesser  included  offense  by  courts-martial 298,  299, 

of  court-m  irtia]  to  convict  where  accused  deserts  during  trial 36 

Sentence  upon,  by  Bummary  court 35 1  i ;  I 

When  authorized  by  the  evidence 296 

Convictions  of  soldier  for  prior  offenses,  when  evidence  to  accompany  charges. .  75  (b) 

Conviction  of  crime: 

See  also  Evidence;  Witnesses. 

Effect  upon  competency  of  witness 211 

Copies: 

Certified,  authenticated  or  official,  as  evidence.     See  Evidence. 
Of  records,  writings,  etc.     See  Evidence,  documentary. 

Corpus  delicti: 

Defined 225  (a) 

Proof  of,  required 225 

Correction  of  record  of  court-martial  (general  or  special  | 3G4 

Corroborative  evidence  defined 248 

Counsel : 

Duties  of  counsel  for  defense 109 

Examination  of  depositions  before  trial 2G6 

For  accused,  court  of  inquiry 463 

For  accused,  how  selected 108 

For  accused,  summary  court-martial 351  (c) 

For  accuser,  court  of  inquiry 463 

For  defense,  right  to  interview  accused  and  witnesses 1  i  0 

Who  is  eligible  for  appointment  as  counsel  for  accused 1 08 

Countersign: 

Defined p.  229 

Disclosure  of 41,427;  p.  3-12;  A.  W.  77 

Improper  use  of 41,  127 ;  A .  W.  77 

Courts-martial — First  examine  titles  lender  the  general  hea  "ts-martial,u 

tl,,n   ■  ' '■  heading  of  the  particular  court,   viz:  "Courts- 

martial  (g  ial)";"Couri  immary)": 

nee  of  appointing  authority,  who  may  act 369 

Absence  of  member  during  part  of  trial,  effect  of 93 

.ce  of  member,  to  be  noted  on  record 85 

Accuser,  eligibility  to  sit  as  member  of  court 6,17,64,  129,  L30;  A.  \V.  8,9,10 

Action  by  re  ,  tewing  authority  on  proceedings  of 

ActsperlormaMe  by  court  whose  members  are  below  statutory  minimum.   ! 

Addi;  ion  of  new  member  during  trial,  effect  of 93 

Appointing  authority 14,  19,21,23,25;  A.  W. 

baring  authority,  accuser  or  prosecutor,  how  determined 17,22 

Appointment  of  officer  as  judge  advocate P-  353 

Approval  of  sentences,  execution,  confirmation,  etc 369, 

404;  pp.  371  373;  A.  W.  46  53 

Arraignment,  challenge,  right  of,  on  each  arraignment 143 

Arraignment ,  convening  order  to  be  read  anew  for  each  case 143 

Arraignment,  procedure  on 144 

A  rraignment,  proceedings  must  be  complete  in  each  case — 143 


;  the  number.] 

i-niartial     Co 



nmcnt,  when  made ' ,;? 

120-131, 137;  A.  W.  18 

]-');     \.   \'. 

Challi  ' 

Chall<  

<  hallenge,  groundsof,  foi  lalbi  

rounds  for  principal '-1  (°) 

Challenge  joinl  charges,  righl  



Challenge,  judge  advi  

Lberality  reqi  ing  upon 128 

Chall<  uge,  member  as  accuser - 

129  V,'.  8,  9 

I  lalined  but  not  challenged --'J 

r  may  n<<t  exercise  righl  t<> 

■   ;  r L3I 

Challenge,  new  member  subject  to 

initymust  besivenou  each  arraignment 143 

Challenge,  oath  to  tesl  competency  of  member  upon L37 

Challenge,  procedure  on  failure  of  accused  t  rightof 120 

procedure  upon 

LD  '  L01  J-° 

.  making ••  •  -       '-[ 

a1  "i' L27 

i  permitted 93 

I    form  of P-  3^3 

•  •  Charges. 

5 

i  doors,  sitting  with "- 

'-1' 

■    •  as  to 101 :  A.  w  .  30 

■  edings 

;  

6~12 

Concurrenl  jurisdiction  ourts. :;;' 

aembers  during  trial sr' 

n  ice 271 

'•' 

Continuances,  application  for  to  whom  made 1:;'' 

Continuances,  application,  musl  state  reasons  for ' !() 

Continuances,  authority  for  granting 139;  A.  W.  20 

Continuances,  grant  of,  to  ty 1::!) 

I  united '  '• 

I  of  judge  advocati  !•.< 1°° 

Control  of  nature  i  47  (c) 

ra        ed 

Lonol  record :;:'-- 

■I,  analysis  ol  e\  Ldence  by ,:"' 

i  ninai  ion  of  Bources  of  e\  Ldence  by 196 

el,  opening  statemenl  l>y 197 


429 

[Reterei  unber, 

and  Articles  oi  War  are  indicated  by  the  letters  "A  thennml>er.) 

iontinued.  Par. 

Court  of  inquiry  record,  admission  as  evidi  n  - 2 

an  to  be  based  solely  upon  e~\  i  'iiri L94 

Decorum  to  be  observed  during  sessions s,i 

i  iii  jurisdiction  rendering  judgment  void 

s     Depositions. 

Determination  of  proper  trial  court 78 

Discretion  of  appointing  authority  as  to  number  of  members    within  au- 
thorized limits 7 

Discretion  of  court  as  to  leading  questions 254 

Disposition  of  record  of  trial,  by  appointing  authority 

eition  of  record  of  trial,  by  trial  judge  advocate 366 

Dut  Les  of,  as  to  sel  f-crimination  by  witness 

Duties  of  members 

■  of  president 89,97,  I  19  (3ft),  L54  (rf),  215, 234 

Duties  accused  is  found  insane 219 

-  of.  where  insanity  of  accused  becomes  an  issue 219 

Effect  on  jurisdiction  of  desertion  or  absconding  of  accused 36 

i  jurisdiction  of  reduction  of  number  i  T  iry 

limit 7 

Evi<  Evidence. 

Examination  of  witnesses  by  members  of  court 

•  pproval  of pp.  371  373;  A.  V* 

Expenses  of.  how  payable 

Extra  pay  for  clerical  duties  for.  when  forbidden 118 

Eacilities  for  holding,  to  be  procured  by  judge  advocate 95 

I  ;1  judicial  system  does  not  include 33 

E<  -r  service  of  subpoenas 19l 

Eindings  of 

i  in  'i  ral  principles 

Finality  of  judgments  an  33 

in,  and  in  civil  coi  i 

of  order  appointing  court-martial,  general  or  special 12  {a  ) 

Functions  of 3  (b) 

Hew  members  are  seated 

Intel  |  oyment  and  pay 119;  A..  W.  115 

136;  A.  W.  19 

Judgi  of.    See  Judge  advocate. 

Judgmenl  of,  void  for  defect  ixi  jurisdiction 34 

Judicial  notice  taken  by 289 

Jurisdiction 

Jurisdiction,  criminal  only :'.:; 

liction,  defect  in,  renders  judgment  void :'.  1 

Jurisdiction,  effect  of  desertion  or  absconding  of  accused 36 

Jurisdiction,  how  divested 

Jurisdiction,  uot  territorial .".7 

Jurisdiction,  special  and  limited 32 

Jurisdiction,  when  exclusive  and  when  concurrent  with  civil  courts :!•"> 

Jurisdiction,  v. hen  terminated 38 

Kinds  of 3  (6),  5 

Leading  questions,  discretion  of  court  as  to 254 

Liability  to  service  as  member  of 81 


430  INDEX. 

e  letter  "  P"  preceding  the  number, 
;  the  number.] 

•  -  martial     Continued.  Par. 

Limits  of  punishment 40,42,  14,309  349;  pp.  369  370,375  377;    \.W.  IS 

Members  accusers,  when 129,  L30;  A.  W.  8,9 

Members,  affirmatiorj  administered  anew  in  each  case 

Members,  affirmation  or  oath,  form  of L32  (a-6);  A.  W.  10 

Members,  as  witnesses 13] 

Members  challenged,  withdrawal  of,  during  procedure  t<>  determine  com- 

acy '-  ' 

Mi  mbers,  decorum  during  administration  of  oaths  t<> 86,  132  (e) 

Members  disqualified  but  not  challenged 12G 

Members,  duties  of 81 

Membi  re,  expecting  to  be  absent,  should  ootify  judge  advocate 

M.  mbers  aew.subjed  to  challenge 122 

Members,  oath,  additional  ceremony  to  bind  conscienceof 132  (d) 

Members,  oath  administered  anew  for  each  cane 132  (c);  A.  W.  10 

■re,  oath  oraffinnation,  form  of - 132  (a  o);  A.  W.  10 

Members,  oath  to  tesl  competency  of 137 

Members  righl  to  challenge a '-' 

Meml  barges,  when  accuser 130;  A.  W.  8,  9 

Members,  sworn  anew  on  arraignmenl  of  cadi  case. 143 

rotingby 90,294,308;  A.  W.  31 

Members,  witnesses  for  defense 131  (b) 

Members,  witnesses  for  prosecution L29,  L31  (a);  A.  \Y.  s.  9 

Members  witnesses,  when  accused  pleads  guilty 131  (d) 

Members  witnesses,  when  called  by  court 133  (c) 

Method  of  voting  by  members 90,294;  A.  W.  31 

■:-.  nolle  prosequi,  grounds  for  and  effect  of  entering 158 

Motions,  to  elect .  act  charged  under  two  or  more  forms 157 

one  of  two  or  more  joint  accused 156 

ial  Guard  nol  in  Federal  Bervice,  system  for pp.  331-332 

Opening  of  proceedings 83,  84 

Order  convening  court,  duties  of  judge  advocate  as  to  correction  of 97 

<  hrders,  form  of PP-  375-377 

Ord(  re,  information  contained  in 400 

Organization  of,  when  completed 142,  L43 

Pardon  and  mitigation,  power  of 380  385,390,  102  403;  A.  W.  50 

is  competent  to  Berve  as  members G,  8-11 

8i 

i  former  trial,  evidence  of -''' 

.  ■  tion  upon  special,  procedure,  etc 153 

Pleas,  burden  of  proof,  etc.,  as  to  special 153  (a) 

constructive  condonation 151 

Pleas,  constructive  pardon  no  bar  of  trial,  evidence  ol 273 

Pleas,  desertion,  statute  of  limitations 149  (2) 

double  jeopardy '  l!'  t-',) 

Pleas,  former  punishment  by  commanding  officer 152  (a) 

Pleat   former  trial  by  civil  courts,  evidence  of -. 274 

former  trial  b}  courts-martial,  e\  idence  of 274 

Pleas,  former  trial  in  courts  of   Alasl.a,  ('anal  Zone,  Hawaii.  Philippines, 

to  Rico 149  (3d) 

Pl<     .  former  trial,  when  a  defense 149  (3) 


INDEX.  431 

[■Referents  are  (o  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P  "  preceding  the  number, 
-ides  of  War  are  indicate!  by  the  letters  "A.  \\ ."  preceding  tho  number. 1 

Courts-martial    Continued.  Par. 
Pleas,  former  trial,  wh<  a  no  defense  where  same  act  constitutes  two  of- 
fenses    1-19  (3d) 

Pleas,  former  trial,  when  not  sustained L49  (3c) 

Pleas,  frauds  against  the  Government,  statutes  of  limitations  as  to 149  (2) 

Pleas,  fraudulent  enlistment,  second  trial  for  as  to  misrepresentation  dis- 
covery subsequent  to  first 149  (3/);  A.  W.  54 

Pleas,  general  issue 1 45,  1 54 

Pleas,  general  issue,  change  of  plea  under 154  (6) 

Pleas,  general  issue,  substitution  of  special  plea  for 154  (b) 

Pleas,  general  issue,  usual  form  of  plea 154  (a) 

Pleas,  how  stated 153  (a) 

Pleas,  illegal  enlistment 152  (b) 

Pleas,  in  abatement 147 

Pleas,  inadmissible  special  pleas 1 52 

Pleas,  in  bar  of  trial 148-151 

Pleas,  insanity  provable  under  general  issue 154  (g),  219 

Pleas,  kinds  of  pleas 145 

Pleas,  lack  of  jurisdiction 146  (c-d) 

Pleas,  limitations  as  to  time 149  (2) 

Pleas,  manslaughter,  etc.,  statutes  of  limitations  as  to 149  (2) 

Pleas  of  guilty,  accused  to  be  advised  as  to  maximum  punishment  for  of- 

fense 154  (d) 

Pleas  of  guilty,  accused  to  be  advised  of  elements  constituting  offense 154  (d) 

Pleas  of  guilty,  followed  by  statement  of  accused  inconsistent  with 154  (e) 

Pleas  of  guilty  not  to  exclude  taking  of  evidence 154  (c) 

Pleas  of  guilty,  record  must  show  explanation  by  president  of  elements 
of  offense  and  maximum  punishment  and  reply  of  accused  thereto.  .  . .  154  (d) 

Pleas  of  guilty  without  criminality,  irregular 154  (/) 

Pleas,  overruled  special,  accused  must  plead  general  issue 153  (d) 

Pleas,  pardon  in  bar  of  trial,  evidence  of 273 

Pleas,  pardon,  scope  of 150 

Pleas,  president  to  advise  accused  in  certain  cases  of  legal  rights  to  plead 

statutes  of  limitations 149  (SA);  A .  W.  39 

Pleas,  release  from  arrest 152  (c) 

Pleas,  restoration  to  duty  before  trial 152  (c) 

Pleas,  several  pleas  to  each  charge  or  specification  allowable 153  (a) 

Pleas,  special,  and  general  issue L45 

Pleas,  special,  burden  of  proof 153  (a) 

Pleas,  special,  how  stated 153  («) 

Pleas,  special,  sustained  as  to  jurisdiction  or  in  bar,  action  of  reviewing 

authority  on 153  (6) 

Pleas,  special,  sustained  as  to  jurisdiction  or  in  bar,  record  of 

Pleas,  statute  of  limitations 149;  A.  \Y.  39,40 

Pleas,  statute  of  limitations  must  be  pleaded,  etc.,  to  deprive  court  of 

jurisdiction  of  offense 149  (Bg),  (3);  A.  W.  39 

Pleas,  sustained  as  to  some  of  the  charges,  trial  on  the  others 153  (c) 

Pleas,  to  the  jurisdiction,  grounds  for,  and  effect  of 146 

Pleas,  unauthorized,  or  ineligible  members  on  court 146    •  b  I 

Power  of  accused  to  demand  trial  by 333,  334,  336;  A.  V.  .  L0  I 

Power  of  appointing  authority  over 20 

Power  of  convening  authority  to  add  new  members  to  court  whose  numbers 

are  below  statutory  limit 7 

53915°— 18 30 


[Rof.v-  nawptwharapa  .  -mbor, 

I  \V:ir:ir<-  Indicated  by  Uio  l.-:tor^  "  A.  W."  prt  iber.) 

Court                        otinued.  par. 

ivening  authority                       20 

.    as  i"  npA"»"g  and  i  Losing 89 

in  favor  of  Government  or  individual 325 

75 

of  jurisdiction ;;  | 

President  of,  duties  of 89,97,  1 19  215,234 

■  ml  of,  dutj  to  advise  accused  of  his  rights L49(3A),15 

uunine  indorsement  referred  for  trial 97 

■  •Hi  of  United  States  maj  prea  ribe  procedure  for 198;  A    V. .  38 

Dnvictions,  procedure  as  to 306 

ii-  convictions,  what  constitutes 307 

i-  (ions .'. . .       306 

Procedure  during  trial.     8a   this  title,  Arraignment;  Moti  Re- 

I  i"  plead. 
Lure  of ,  may  be  prescribed  by  President  of  United  Stati  L<  •    LW.  38 

Lure  of,  upon  revision 

Lure  of,  with  reference  to  judicial  notice 2S9 

Procedure  upon  addition  of  member  of  court  during  trial 93 

Procedure  where  special  plea  sustained  as  to  some  charges  only L53   c) 

of,  void  for  defects  in  jurisdiction 

Rank  of  appointing  authority !!i,  23 

Record,  authentication  of 354,  358;  A.  W.  33,  3  I 

I.  by  whom  prepared 95, 107, ! 

Record,  correction  of  error  or  omission  in 364 

rd,  disposition  of 366,  367;  A.  V 

□  of,  by  appointing  authority 367 

Record,  disposition  of ,  by  trial  judgi  .  366 

R<  crd,  explanations  to  accused  to  appear  in 149  (3 

rd,  loss  of,  what  action  to  be  taken 368 

Record  must  be  complete  for  each  case,  wit  bout  reference  toanyot  her  disc.      143 

Record,  separate,  for  each  case 356,  358 

Record,  to  be  prepared  by  judge  advocate 95 

ismitted  to  appointing  authority 366 

I.  to  contain  charges  and  signatures  thereto 64 

i!  to  plead,  action  to  be  taken L55 

Reporter,  oath,  form  of 135   a);  A.  W.  L9 

Right  of,  to  proceed  with  trial  of  accused  who  absconds  or  deserts 36 

Rule  for  determining  whether  accused  should  be  tried  by  general,  Bpecial, 

or  Bummary  court-martial 78 

idence.     Sei  E\  idence. 

era 83 

tnenl  of  service  of  accused,  when  considered 271 

Tim'    :  SI 

I  iiii'onn  of  mend  .  ,  and  accused 82 

Voting  by  members  of 9<  L  W.  31 

When  appointed  by  superior  authority 14,21 

When  closed  -•     ions  required 9i 

When  dissolution  mould  be  ordered 7 

When  to  report  as  to  weighl  given  certain  e\  idence 

Witn  Witnesses. 

Who  may  be  tried  by 13;  A.  W.  2, 12 


INl'KX.  433 

[References  are  to  paragraphs,  except  whoro  ,  number, 

and  Articles  ai  War  are  indicated  by  <  he  lei  teie  "A.  w."  preceding  *  i i*^  im 

Couxta-martial  (general) — First  examine  titles  under  tfu  general  heading,  "t  ourts- 
martial,"  ■■'  titles  under  the  heading  of  the  pan 

"Courts-martial  [general)";  " Courts-martial  (specuil)";  "Courts-martial  sum- 
mary)": Par. 

Appointing  authorities  enumerated 14, 16;  A.  W.  8 

Appointing  authority  of  President  of  I'nited  States 15 

Appointing  authority,  rank  of I'.t 

Appointing  authority's  power  over 20 

Appointing  power  is  attribute  of  command 18 

Appointment,  ollicers  eligible  for 6,  9, 11, 129-131 ;  A.  W.  8 

Assistant*] udge  advocate,  appointment,  powers..  30,  31,  94, 100, 107;  A.  W.  11.  L16 

Authentication  of  record :  154 

By  whom  appointed 14-20;    . 

( lharges,  service  of,  upon  accused 80;  A.  \V.  70 

Composition 6, 7  (a),  9-12:  A.  W.  4.  5,  8 

Confinement  in  disciplinary  barrack.-,  when  proper 

Confinement  in  penitentiary,  when  lawful 337-339,  34 1,  396;  A .  \\     12 

Contents  of  record  of 

Death  sentence  by 16 

Dismissal  of  officers,  confirmation,  suspension,  etc 15, 

378,  3S2,  391,  392;  A.  W.  48,  51, 118 

Duration  of  power  of  commanding  officer  to  appoint 18 

Form  for  appointing p.  332  (a) 

Form  for  order  of p.  375 

Form  of  record  of  trial  of pp.  357-304 

Form  of  revision  of. record  of pp.  363,  364 

ral  officers,  sentences  respecting 378;  A.  W.  43 

Jurisdiction,  powers 3,4,13,32-10,78,173,320;  A.  W.  12 

Limits  of  punishment  by 40 

Number  of  officers  required  for 7  (a) ;  A.  W.  5 

0  [lenses  punishable  by 39 

Penitentiary  sentence,  record  must  show  authority  for 

qs  triable  by 39 

Preparal ion  for  trial,  time  allowed  accused 80;  A.  W.  70 

Punishment  which  may  be  imposed  by : 40 

Record,  contents  of 

Record,  copy  to  be  delivered  to  accused 

rd,  form  and  contents  of 357;  pp.  3 

.  authority  for  penitential  339 

ings,  form  of  record  of pp. 

What  offenses  should  be  tried  by 78 

Court-martial  (special) — First  examine  titles 
martial"  then  examine  till-  s  una\  rthe  heading  of  the  particular  court,  viz: 
martial  (<!•  rural)";  "  Courts-martial 
Appointing  authorities  enumerated 21;  A    \Y.  '.> 

App  luting  authority,  rank  of 22 

Appointing  authority  where  subordinate  disqualified 22 

Appointment,  officers  eligible  for 6,9-11,24,  129  L31;  A.  W.  9 

Brief  of  ri  cord  of • 

Binding  of  record  of 

By  whom  appointed 21  -23 ;  A .  W .  9 


434  ix!»kx. 

:  the  number, 
:  War  are  indicated  by  tbelettera  "A.  \v."  preceding  the  aumber.] 

i  -martial    Continued.  Par. 

a  of 6, 7  (6),  9  L2;  A..  W.  4,6,9 

Contente  of  record  "f 

Form  ;ui<l  substance  of  record  of 358;  pp.  365  366 

Form  for  appointing 

ler  for !>■  376 

II.. w  appointed  by  superior  authority   because  of  disqualification  < )"  sub- 
ordinate authority 22 

Jurisdiction,  powers 3,4,32  38,  H,42,78,  L73,320;  A.  \V.  1:1 

Limits  of  punish  men  I  by 42 

Number  of  copies  ■•!"  record  of 

Number  of  officers  required  for 7  (6);  A.  W.  6 

(M'fi  n--.  ■•■  punishable  bj 41 

Persons  triable  by 41 

dure  of 350 

Procedure  of ,  on  revision 352 

Punishments  imposable  by 42 

Record,  form  and  substance  of 358;  pp.  365-366 

Rei <>rd,  not  to  be  indexed 360 

Record,  number  of  copies  of 359 

Record,  requirements  for 358 

R  cord,  to  be  bound 362 

Record,  to  be  briefed 361 

Whal  offenses  should  be  tried  by 78 

When  commanding  officer  eligible  for  membership 24 

Courts-martial  (summary) — First  > xammt  titles  undertiu  <:•  neral  heading,  "Courts' 
martial"  tin  n  examiru  Hth  s  und\  rtiu  h  ading  of  tin  particular  court,  viz:  "Courts- 
martial  {general)";  "Courts-martial  (specia  s-martiai  (summary)": 

Acquittal,  record  of 351  (0 

Appointing  authorities  enumerated 25;  A.  W.  4,7,10 

Appointment,  officers  eligible  for 6,9,11  26,27;  A.  W.  L0 

Attendance  of  witnesses 351  (c) 

Challenge  of  court '-0 

Composition 6,7,9  12,26  27;  A.  W.  4,7,10 

Composition  of,  where  but  one  officer  presenl 27 

Composition  of,  where  more  than  one  officer  presenl 26 

Conviction,  record  of 351  (A) 

Effects  of  deceased  persons,  how  disposed  of 482;  A.  \V.  1 12 

K\  Ldence  of  good  character,  etc 351  (e) 

I  pre\  ious  con\  Lctions :  ]  {g) 

Findings  of 351  (/) 

Form  and  substance  of  record  of 363;  p  36* 

Inquests  by 483;  p.  409;  A.  W.  L13 

Jurisdiction  of 3,  1,32  38,  13  44,78,  L73,482,483;  p.  409;  A.  \\     I  I 

Limits  of  punishment  by 44 

Number  >>f  officers  required — ». 7  (c) 

Offenses  triable  by .' -,:' 

ibleby 43(7);  A.  \Y.  II 

Pi  cedure  for  appointment  where  bul  one  officer  presenl 27 

dure  of 351 

Procedure  on  r<  vision  353 

lice. >r.l  .if,  correel ion  of  error  m  omission  in 365 

Record  of,  form  and  substance  of 36:$;  p.  367;  A.  V* .  34 


INDEX.  435 

[References are  to  paragraphs,  except  whe-o  p  the  letter  «•  P"  pri  rnber, 

a  id  Articles  of  War  are  indicated  by  thelettera"A.  \V."  preceding  the  numlip'-.] 

Courts-martial— Continued. 

II  ■!  ■■  m  i ■:'  '•  365 

Sentence,  record  of 

ns  of 351  i  a  ) 

Sunday  sessions,  when  permissible 351  (a) 

Time;  of  holding  sessions 351  (a) 

To  hold  inquests  to  investigate  the  cause  of  sudden,  violent,  and  unnatural 

deaths 483 

Transmission  of  record  to  appointing  authority 

When  accuser  or  witness  for  prosecution  may  ac1  as G 

When  commanding  officer  is  eligible  for  appointment  as  summary  court 27 

Courts  of  inquiry : 

ce  of  recorder 

Accuser,  counsel  for. 463 

Admission  of  depositions  in 468 

Analogies  of  a  court-martial  govern,  whom  applicable 461 

Appointtnenl  of  reporter  and  interpreter 457 

Assignment  of  retired  oGicers  upon 453 

Attendance  of  party  whose  conducl  is  being  invest  Lgated 462 

Authentication  of  proceedings 272,473  475;  A.  W.  L03 

Authority  to  punish  for  contempt 460 

Challenge  of  members  of  court  of  inquiry 46  1 

Composition  of ■ ;A.W.  98 

Conclusions  of  fact  of 469 

( !ontemp1 .  power  to  punish  for 460 

Counsel  for  accused,  selection  of 463 

Convening  order 455 

( Convening  power,  how  limited 

(  ration  and  functions  of 3l  c\  447-52 ;  p.  287;  A.  W.  97 

Depositions  in 468 

Discretion  as  to  ordering  court 449 

I  dsposition  of  record -174 

Examination  of  witnesses 

Findings  of 469 

Functions  of '..  3  (c),  447,  150  52 :  A .  W.  97 

In  general 272.  117  475;  pp.  287  292;  A.  W.  97-103 

Interpreter,  appointment  of 

Jurisdiction  of 

!         governing - '';' 

Limitation  upon  power  to  convene 1  's 

Members  of 

New  member  to  hear  testimony  read 

Oath  of  interpreter 466 

Oath  of  recorder 

Oath  of  reporter 

Oath  of  witnesses 

Oaths  of  members 466;  A.  W.  LOO 

Opinion;  when  furnished ";'':  A.  W.  L02 

Persons  subjecL  to ' ,'" 

Powers  of 458  472 ;  A .  W.  101 

t  to  Bummon  and  examine  witnesses 458 

President,  power  to  adminster  oath  and  acl  


436  i-Xi 

indicated  bj  the  letter'  P"pre  ediog  the  number 

. 

.  ;  inquiry — Continued. 

Procedure  of 458-472;  A    W.  L01 

ire  where  new  member  added 

I  ;r.-  with  reduced  Dumber  of  members 465 

Publication  of  proceedings  of 472 

Rank  of  members 458 

I  as  .  vidence,  when  admissible 272,  17.">:  A.  W.  27 

I  of ; 

I  of,  admissible  for  defense  in  capital  cases 272;  A.  W.  27 

»rd   of,  admissible   tor  defense   in   cases  extending  to  dismissal 

officers 272;A.W.27 

."ii J74 

I  of,  how  authenticated 473 

rder  entitled  to  have  soldiers  detailed  as  clerks  or  orderlies 105 

,  r  Eor  each  courl 454 

ler  power  to  administer  oaths  and  act  as-notary 138(6);  A.  \V.  114 

Reduced  Dumber  of  members  by  casualty  or  challenge 465 

Refusal  of  witnesses  to  appear  <>r  testify 170,459 

Reporter  appointment  of !-'7 

Reporter,  detail  of  enlisted  man  as 457 

on  of  investigation 471 

Secrecy  as  to  votes  and  opinions  of  members 170 

as  a  COUrt 4G1 

Statute  of  limitations  not  applicable ! 

Subjecl  matter  triable  by ,;''J 

Testimony  taken  before  addition  of  new  member 465 

v  whom  ordered 117;  A.  W.  97 

Witnesses,  power  to  summon  and  examine 458-460,  4G7,  468;  A.  W.  101 

Witness,  refusal  to  appear  or  testify,  punishment  for 170,459;  A.  W.  23 

<         rdice: 

Dismissal  for,  publication 347;  \ 

aavior  before  enemy  in  time  of  war 41,347,425;  p.  341-  342;  A.  \V.  75 

imentfor :;'7 

Credibility: 

See  also  Wit 

Defined 256 

Of  aci  impeachable 205 

may  be  attacked  irrespective  of  rank 200 

Particular  offenses  by  Dame. 

liction  of  eivil  and  military  courts :',;> 

ipital -1  ■»« ;  A.  W.  96 

Presumption  of  in  tent  Ln  connection  with '- 

Criminal   prosecution,   removal  of,  when  instituted  againsl   officer  or  other 

member  of  military  service ,M 

lamination,    s,,  Trial. 

Cuba,  fees  and  mileage,  civilian  witnesses  in 185(a) 

m.  punishments  prohibited  by 

military  property 281,  133;  p.  344;  A.  \\  .  83 

weapon  denned p.  284 

a,  investigation  of,  bj    ummary  court 4S3;  p.  400;  A.  \\  .113 


IN] 

[Rofereooea  are- to  paragraphs,  except   . 

mid  Articles  of  ^'ar  are  Indicated  by  the  Letters  "A.  w."  pre  edlngthenu 

ice:  Par. 

Commuted  to  imprisonment .  execution  of,  in  penitentiary 338 

m  of,  when  required 378;  A.  W.  IS 

Execution  of,  by  commanding  general  in  time  of  war  in  certain  cases 378  (VZ); 

pp.  411-4]  1;  A. 

Suspension  of 391 ;  pp.  411-4L4;  A.  W.  •">! 

Vote  upon 308 

When  authorized 191 ;  pp.  411-414;  A.  W.  43 

Debts,  failure  of  officer  or  soldier  to  pay.  when  basis  f<  >r  ehanros  under  A .  W.  95, 96. .      71 

Deceased  persons,  disposition  of  effects  of 4S2;  A.  \V.  1 12 

Declaraii-iiis  against  interest  as  evidence 226 

Decorum  to  be  observed  at  court-martial  trials 86, 132  (e) 

1 

Ignorance  of  fact,  when  available  as '. . . .       283 

Ignorance  of  law,  when  available  as 282 

Members  of  court-martial  as  witnesses  for 131  (6) 

Definitions: 

Abandon p.  226 

Abuse p.  2 !  I 

Accuser 17,22 

Additional  charges 73 

Appointing  authority 369 

46  in;  p.  218;  A.  W.  69 

Arson p.  254 

Assault p.  266 

1 1  with  a  dangerou  -  

11  with  intent  to  commit  a  felony p.  266 

Assault  with  intent  to  commit  manslaughter p.  269 

It  with  intent  to  commit  rape p.  270 

1 1  with  intent  to  commit  sodomy p.  27 1 

Assault  with  intent  to  do  bodily  harm p.  272 

Assault  with  intent  to  murder p.  268 

tit  with  intent,  to  rob 270 

Articles  of  War.  for  purposes  of 4.8:  A.  W.  1 

At  or  near : 7  1   g) 

Attempt p. 213 

•  a  mutiny  or  sedition p.  213;  A.  W.  66 

Att.  mp1  to  desert p. 202;  A.  W.  58 

:er  p.  211;  A.  W.  65 

Attempt  to  slrike  superior  officer p.  209;  A.  W,  64 

!    n;  A.  W.  1 

• pp.2 

Be  inni   5  a  mutiny p.  214 

p.  2:.<; 

try p.  255 

1 11  tiny ]>.  21  1 

a  duel p.  248 

ill 

61 

ostantial  evidence 202,  203 

'.I  I 

<  lothing p.  239 


i  n  i  •  i :  \ . 

m!>cr, 
thenumborj 

T:ir. 

-:>7 

( lomm  ird pp.  219,  220 

Comma      u  •■     cer pp.216,: 

( lommanding  officer  for  th<'  time  being 374 

quiry lis 

(Commanding  officer,  with  reference  to  Bummary  courts-martiaJ l'<; 

iany 4n;  A.  \V.  1 

ilmenl p.  197 

ind  gentleman p.280 

aemenl p.  218 

Constructive  breaking p.  256 

fuctive  condonation 151 

■  contempl 173  (r) 

mpl 

•  iptuoue  words p.  206 

•  < i<  li<  t i 225  (a) 

orative  oviilence 248 

Countersign p.  229 

Credibility 256 

Dangerous  weapon : p. 284 

p.  216 

Depredation p   846 

rtion 284(a);  pp.  201,  202;  A.  W.  28,  29,  58 

l>.    iched  battalion 28 

i  ►eteclxed  unit 28 

Detachmenl 28 

Direcl  contempl 173  (r) 

Direct  evidence 202 

evered 

Disobedience p.  209 

lei p.  216 

Disrespectful  behavior p.  207 

pectful  words p.  206 

Drunk 74  (p),  p.  240 

Di  -'.kenness p. 240 

Dud p.  247 

Duty P-240 

Dwelling  house I1!'-  254  -255 

Bmbezzlemenl p.  264 

ty pp.  226,  234 

Excil  ing  a  mutiny p.  214 

Execul  Ion  <>f  office p. 211 

Expert  witness 218 

writing p.  284 

ry 1»  284 

Pound  drunk  <>n  duty p.  240 

Fraudulenl  enli  I nl 149  (3)  (/>,  p.  L96 

Pray P-  216 

<  reneral  prisoner 74  (.;')  n 

Indirect  evidence 202 

Interested pp.  243, 244 


INDEX.  439 

[References  are  exoeptwherep  the  letter  "P"  preceding  the  number, 

niiljer.] 

Definiti  aued.  Par. 

in  the  military  Ben  ice  of  the  I  9 

Joining  in p.  L'i  1 

Joint  offense 09 

e  Advocate 107 

Judicial  notice 289 

Knowingly ' p.  L98 

Knowledge p.  248 

Larceny p.  257 

[.awful  order p.  210 

Leading  question 254 

Loss ■ pp.  237,  239 

p.  250 

Malic<  aforethought p.  250 

Manslaughter p.  253 

Martial  law  as  applied  to  Army 2  (r) 

Martial  law  at  home 2  (b) 

Mai i  rial  evidence 202 

Mayhem p.  254 

Military  Government 2  (a) 

Military  Law 2(d) 

Misappropriation p.  279 

Misbehavior p.  225 

Misrepresentation p.  197 

Mil  igation  of  punishment 380 

Murder p.  249 

Muster p.  198 

Mutinv p.  213 

Oath p.  2«6 

Officer 4n;  A.W.  1 

Officer  commanding  for  the  time  being 374 

On  duty p.  241 

On  or  about 74  (p) 

Pardon 150 

Parole P-  230 

Perjury P-  264 

Presumption  of  fact 278 

i'ri  sumption  of  law 277 

Pretense P-  -(,s 

Previous  conviction 307 

Prima  facie  <\  idence 279 

Pri  *  »ner PP-  219,  220,  221 

Privileged  communications '-"-'7 

I  ■         utor 17,22 

Provoking  speeches  and  

Qua  rrel P-  216 

Rape 

uabledoubl 288 

Relevant  evidence 202 

Reproachful  Bpe  sches  and  gestures 

Res  gestae 

Reviewing  authority a(i'J 


440  on 

tod  by  thclottor  "P"  preceding  tlieuumbor, 
m.l  Irtjclea  of  war  are  fauMoated  bj  tha  letters  "A.  W."pn  amber.] 

Lonfl    Continued.  Par. 

Riot V 

Bobbery P-262 

Routine  duty 66 

Saf  V 

Scandalous  and  disgraceful  offenses 74 

Sedition - P-213 

Sentinel P 

[dier 4  n;  A.  W.  I 

'  ' 

11 !' 

' P-236 

'  limitations '  •" 

Suffering  militarj  property p.237 

Su]  PP-  207>  208 

T(   timonial  evidence 202,207 

P-  257 

Trial "» 

Tried 1!'' 

I  olawful 

Voluntary  confession 225  i  V) 

Waste.... 

Weapon,  dan  P  284 

Willful 

Willful  disobedience P-  209 

Willful  injury P  239 

Willful  lot PP- : 

Degra  i     tending  to 233  (a) 

Delivery: 

ml  called  lot  by  receipt ::  p.  277;  A.  W.  94 

il authorities 35,281,401,424;  p.224;  A.W.74 

I   to  submit  lo 68 

rial  departments. 

138,165,167,174-182,263-269;]  A.W.25,26 

objection  to 

when 165,  167,  174,263  269;  pp.379  382;  A.  \\ 

arts  of  inquiry 168 

Alii,!.  269 

at  to  be  responsive |s,) 

;. 175;    \.  W.26 

in  evidence 2(58 

rocedure  to  obtain,  of 177  (c) 

( lompetency  of  witne  ses,  objections  to 265 

i  1,  how  traced 17i<? 

be  designated  by  official  title  when  name  unknown 179 

Lnal  ion  of  by  counsel  before  trial 266 

ing !s| 

mtry,  taken  in 

Interrogator!  i,  duties  of  commanding  officer  on  receipt  of 

in  for  submission  to  opposite  party p  379 

Intern  I  to  opposite  party 171 

[nten  ion  and  forwarding  of '«-  (<0 

Introduction  of  as  a  whole 268 


[NDEX.  441 

^References  are  to  paragraphs,  except  where  \  ■  .inti^r, 

and  Ajti<  lea  ol  War  are  indicated  by  I  bo  letter  "A.  v  ."  pre*  eding  tho  number. | 

Depositions— Conti 

Judgi  inol  i1';.  counsel  for  accused  of  receipl  of 206 

Military  witi  mpany  interrogatories 177 

Miscel]  268 

Object' jus  to  acb dj  nee 265 

Objections  to  competency  of  witnee  i  .  hen  and  how  taken 265 

Office  to  take,  may  administer  oaths  for  military  pi 

Pov  ■  public  in  foreign  places  where  Arm\ 

Procedure  as  to,  al  trial 267,  268 

Procedure  to  obtain 177  (a-c);  pp.  3S0-3S2 

Reading  i >f,  at  trial 267,  268 

Taken  before  whom 175;  A.  W.  26, 114 

Taking  in  foreign  country 182;  A.  W.  114 

Tracing  delayed 178 

When  admissible 165,167,174,263-269,275;  pp.  379-382;  A.  R 

When  admissible  by  defense 263,264;    A.  V,'.  25,26 

When  :  3ecution 268 ;  A .  \Y.  25,  26 

Depredation,  defined p.  246 

Desertion 41,60, 

,  J  19,  281,  284-286,  338,  340,  409-411;. 
pp;  336j  338-339,  393-396;  A.  W.  28,58-60 

Absence  without  leave,  presumption  from  continuing 2s4 

Advising,  aiding,  persuading,  or  assisting  another  to  desert 41,  410; 

p.:;: 

Authority  of  citizen  to  arrest  for 5!) ;  A.  W.  106 

Authority  of  civil  authorities  to  arrest  for 56;  A .  \V.  L08 

By  what  courts-martial  triable 78 

Confinement  in  penitentiary  for,  when  authorized 

Constructive  condonation,  pleaded  in  bar  of  trial 151 

Conviction  of,  disapproval  by  reviewing  authority 58 

Defined 284  (a);  pp.  201-202;  A.  W.  28-29,  58 

Entertaining  and  retaining  of  deserter  by  officer 411;  p.  3:;y;  A.  W.  60 

Evidence  to  prove 

Followed  by  fraudulent  enlistment 74  (n),  284,  409;  A.  \V.  29 

Forfeiture  of  deposi  ts 

In  time  of  peace,  punj  hment  for 3  10;  A.  W.  58 

In  time  of]"  imitations 149;  A..  W.  39 

In  lime  of  war,  not  barred  by  statutes  of  limitations 149;    1  I 

In  time  of  war,  punishment  for 338,340;  A.  W.  58 

Minority  of  <  set  of 60 

Of  accused  during  trial,  effect  upon  jurisdiction  of  court-martial i 

Offict  r  g  and  retaining  deserter 411;  A.  W.  00 

Officer  quit  ore  resignation  accepted 281,  284(a);  A.  W.  28 

Persuading  another  to  desert 4  10;  . 

ited,  in  t  inns  of  peace,  punishmenl  for 

ration  to  duty  without  trial  is  constructive  i 151 

Statutory  rules  of  evidence  as  to  enlisted  men 284  (a);  A.  W .  29 

Statutory  ruJ  nee  as  to  officers 284  (a);  A.  i 

Sufficiency  of  proof -  I 

Time  lost  to  be  made  good 38n;A. 

When  chargeable  as  a  joint  offense 69 


•!  12  i.m       . 

ted  by  the  letter  "  P"  preceding  the  number, 
ihenumber.l 

■  ion  of  prop  '',r- 

!•   ni  hmeni  For 439;  A.  V.  .  89 

for 481;  A.  W.  105 

. 

1 28 

From  command;  effect  of,  on  power  t'>  appoinl  general  court-martial..  —        18 

defined P-  -1,; 

Dental  .-  irgeon,  oot  usually  detailed  as  member  (if  court-martial 6 

rfeitureof 326 

Detached  battalion,  defined 28 

efined 

Detention  of  pay,  punishmenl  by 

Direcl  defined 202 

toy  al  of  sentence,  effect  of 372 

1  '»>  habeas  corpus,  brief  to  be  filed  with  return  to  writ 

norable 

;   upon  jurisdiction  of  court-martial 38  (a,  d,  e) 

Of  soldier,  how  effected 42,-14,  320,  382,  393,  403;  A.  W.  10b 

Discipline: 

See  also  Disciplinary  barracks;  Disciplinary  punishments. 

Conduct  prejudicial  to  good  order  and 35,  71,  74  (e),  90,  173,  23 1 .  235, 

286,  294,  300,  415,  420,  423,  440,  4G0j  p." 336,  349-352A;  A.  W.  96 

Maintenance  of,  on  march  and  in  quarters 439,  481;  p.  345;  A.  W.  89 

lading  officers 320,  333-336;  A.  "\\  .  104 

i ,  means  of  enforcing 345 

Disciplinary  barracks: 

( Jonfinemenl  in 337-341,  396-399;  A.  W.  42 

General  prisoners ,l'' 

I',  rspns  sentenced  to  dishonorable  discharge 396 

,  Unary  power.     See  Disciplinary  punishments. 

linary  punishments 333-  336;  A.  \\ .  104 

St  •  also  Discipline. 

Appealsfrom 333,335;A.W.  L04 

Limitations  on  power  to  impose ■•■'  ' 

of  commanding  officer  to  impose 333  336;A.W.  L04 

Power  to  impose,  cannot  be  delegated '••'A:]*  A.  W.  104 

R(  col  !  of,  to  be  kept  by  commander 334 

Discovered,  defined p.  204 

1 1      edit,  conduct  tending  to  bring,  upon  the  military  Bervice 446;. A.  W.  96 

i  he  service,  how  pleaded ' 4  ("0 

Dishonorable  disci 

Mitigation  of  sentence  of 382 

On  account  of  previous  convictions 349  (Art.  VI)  p.  168 

Etemi  don  of  suspended  sentence  of ,('-' 

-  S20'343 

of   entenceof 321,  340,  393 

lension  of  .entenceof,  with  *                   iration  to  duty,  status  by  re- 
mi    ion  thereof 

Disini 

I  on  jurisdiction  of  court-martial 38 

For  what  offenses  mandatory !<)  n>  A ■  ^  ■  !,° 


INDEX.  443 

[References  are  to  paras*raphs,  except  where  p  ited  by  the  letter  "  P"  pre  edim,' the  number, 

and  Articles  of  War  are  Indicated  bj  the  letters"  \.  w."  preceding  the  number.] 

Dismissal  -Continued.  Par. 

Of  cadet,  confirmation  of  sentence  of 

Of  officer,  confirmation  of  sentence  of :i7S  (a),  (b) 

Of  officer,  for  cowardice  or  fraud,  publication  thereof 347 

Of  officer,  for  disrespect,  toward  Federal  or  State  officials 413 

Of  officer,  how  effected 15,  38, 

41,  43,  378,  391-392,  A.  W.  IS,  51,  118 

Of  officer,  under  A.  W.  95,  no  additional  punishment  allowable 312 

Right  of  officer  dismissed  by  President  to  trial  by  court-martial 38  (6) 

Disobedience: 

Defined p.  209 

Of  order  into  arrest  and  confinement  of  one  engaged  in  quarrel,  fray,  or 

disorder 419;  A.  W.  68 

Of  order  of  noncommissioned  officer,  by  soldier 416;  pp.  339-340;  A.  \Y.  65 

Of  order  of  president  of  court-martial,  how  punished 89 

Of  order  of  superior  officer 41,  415;  p.  339;  A.  W.  64 

Disorders: 

Defined p.  216 

Power  of  officers  and  noncommissioned  officers  to  quell 46,  47, 

52.  419;  p.  340;  A.  W.  68 
To  the  prejudice  of  good  order  and  military  discipline.  446;  pp.  349-352A;  A.  W.  96 

Disposition: 

Of  effects  of  deceased  officers  and  soldiers 482;  A.  W.  112 

Of  military  property,  wrongful 433,  444 ;  p.  344;  A.  W.  83,  84 

Of  record  of  court  of  inquiry 474 

Of  record  of  trial  by  appointing  authority 367 

Of  record  of  trial,  by  trial  judge  advocate 366 

Disrespectful  behavior: 

Denned p.  207 

Toward  superior  officer 414 ;  p.  339;  A..W.  63 

Disrespectful  words: 

A  ga i nst  Federal  or  State  officials 4 1 3 ;  p.  339 ;  A.W.  62 

Defi  ned p.  206 

Divisions:    See  Territorial  divisions. 

Documentary  evidence.    See  Evidence,  documentary. 

Double  jeopardy: 

where  no  former  trial  within  in  meaning  of  A.  W.  40 149  (3c) 

Evidence  to  prove 274 

Fraudulent  enlistment,  second  trial  for  misrepresentation  dicsovered  sub- 
sequent to  first 149  (3/) 

Limitation  as  to  number  of  trials 149  (:',);  A.  \V.  10 

Same  act  may  constitute    two  offenses,  one  against  State,  one  against 

United  States 149  (3d) 

Same  acts  not  subject  to  second  trial  in  another  court  of  same  govern- 
ment     ! 

Same  offense  can  not  be  charged  under  another  article  and  description  for 

nd  trial I  I 

Trial  defined  as  to 149  (3c) 

Trial  in  either  military  or  civil  courts  in  Alaska,  Canal  Zone,  Hawaii.  Phil- 
ippine [glands,  or  PortO  Rico  is  bar  to  trial  in  other  tribunal  for  same 
acts 149  (3d) 


444  INDEX. 

ted  by  theletl '  P'(  preoed  number, 

vindicated  by  the  letters  "A.  W."  p  imber.] 

Draft:  Par 

<  Officers  drafted  are  eligible  for  memb  irrt-martial 

When  -law t   a);  A.W.2 

ing weapon  upon  officer  or  ncncominissioned  officer. .  419;  pp.217,  340;  A.  W.  68 

j>r-ink,  defined v 

Drunkenness: 

A  -  a  defense,  how  considered 285 

I  tefined P-  24° 

Findings  under  charge  of 304 

How  proved 287 

Officer  found  drank  on  duty 40  n,  135;  p.  344;  A.  W.  85 

S.-nniM-l  found  drank  on  post 281,436;  p.  344;  A.  W.  86 

When  a  defense 

When  a  violation  of  A.  W.  95 P-  28] 

When  a  \  iolation  of  A.  W.  96 p.  282 

Doling 378,  441;  p.  345;  A.  W.  91 

i  defined P-  24° 

Officer  found  drunk  on 435;  A.  W.  85 

Suspension  from,  effect  of 316 

Dwelling  house,  defined P-  254-255 

tral  ions,  admissibility  of,  as  evidence 222 

Eligibility,  for  service  as  member  of  court-martial,  persons  eligible 6,  9, 10, 11 

Embezzlement: 

Commission  of,  by  person  subject  to  military  law 35, 

38  (a),  280,  285,  347,443-444;  pp.  264,  278;  348,348;  A.  W.  03,  94 

Defined P  264 

Of  military  property 444:  P- 278;  4,,,W.  94 

Trial  for,  statute  of  limitations 149 

Enemy: 

Defined pp.  226,234 

Misbehavior  before 41  425;  pp.  341, 342;  A.  W.  75 

Relieving,  aiding,  harboring,  protecting,  corresponding  with,  or  giving 

41,  «31;p.343;  A.W.81 

hen  a  detachment  for  disciplinary  purposes 28 

Knli  ti  d  men: 

o   officer  by,  when  authorized 47;  A-  W.  68 

•  of,  when  authorized ;r>  '  '  •  52;  A-  W.  68,  69 

.  %,  may  initiate 62 

prefer 62 

• .  n  moval  of 484'.  A.  W.  117 

Confinemenl  of,  when  authorized 46(6),  52;  A.  W.  68,  69 

Communications  from,  to  medical  officers  not  privileged 231 

aal  prosecution  against,  removal  of 484;  A.  W.  117 

Disciplinary  power  of  ci  i    over ■ 

|  Federal  or  State  officials 413;  p.  339;  A.  W.  63 

ment,  time  lost  to  *>d 38  (e)  n,  340;  A.  W.  107 

Puni  bmentsof,  relative  sev<  rity  of 

Reporter  of  court-martial ] 'r> 

Reporter  of  courl  of  inquiry 457 

d,  subject  to  military  law 4(a)  n,  13;  A.  W.  2 

OX  wrongful  disposition  of  military  property  by 434;  p.  344;  A.  W.  84 


INDEX.  445 

I'.:  [  :'  ■  L  by  the  letter  "P 

:'  War  are  indicated  by  the  letters  "  A.  w."  preceding  tluv  number.] 

Enlisted  c  Par. 

if,  various  kinds 311 

Suffering  Lobs  of,  damage  to,  or  wrongful  disposition  of  military  prop<  i 
by... 433;  p.  344;   A.  W.  83 

Enlisted  Reserve  <  'orps,  when  subject  to  la  ay 4  (a)  n 

Enlistment: 

Procuring,  by  misrepresentation  or  concealment  concerning  qualifications 

for......... 281,405;  pp.  336  337;  A.  W.r.i 

Time  lost  to  be  made  good ' 38  (e)  n,  340;  A.  \V.  L07 

Unlawful,  by  officer 406;  p.  337;  A.  W.  55 

Without  discharge 74  (n),  284  (a);  A.  W.  29 

Enlistment,  fraudulent ,     S*  e  Fraudulent  enlistment. 

Equivalent  punishments,  table  of 349;  p.  107 

Equivalents,  for  maximum  punishment  of  offenses 349;  p.  167 

Error: 

In  record  of  general  court-martial,  correction  of 364 

In  record  of  special  court-martial,  correction  of 364 

In  record  of  summary  court-martial,  return  to  court 365 

Escape: 

From  confinement 420;  p.  340;  A.  W.  69 

Suffering,  of  prisoner  through  design  or  neglect 57:  423;  p.  341;  A.  W.  73 

Espionage,  punishable  by  death 432;  p.  3 13;  A.  W.  82 

Accomplices  and  co-conspirators,  testimony  of 224 

Evidence 194-289 

Admi-  haracter  evidence 205 

Admissibility  of  depo 

Admissibility  of  record  of  proceedings  of  court  of  inquiry  as 475 

Admissions  against  penal  interests  of  parties  other  than  accused 226 

Admissions  or  declarations  against  interest 226 

Affidavits  not  admissible  as 26!) 

Analysis  of,  by  counsel  for  accused 196 

Analysis  of,  by  Judge-Advocal e 196 

Articles  of  War  28  and  29  prescribes  rules  of 74  (n)  n,  284  (a) 

Best  evidence  rule 237 

■f  witness,  how  proved 260 

Bias.'  s  affecting  admissibility  and  weight 213 

Binding  force  of  common  law  rules  upon  courts-martial 199 

Burden  of  proof  rests  with  prosecut  ion ; I 

icate  of  discharge  admissible  to  prove  good  270 

ible 205 

istantial,  evidence  of  ch  I  2()7> 

(  Lrcumstantial,  evidence  of  services  of  accused 205 

(  io  tunstantial, illustral  ions  bel  w<  en  good  and  bad 204 

Circumstantial,  introduction  of,  where  there  is  direcl 203 

atisfactory  than  direct 203 

(  Lrcumstantial,  motive  or  lac!  of,  illustrations 206 

Circumstantial,  o?  desertion 284 

Co-conspirators  and  accomplices,  testimony  of 224 

Comments  by  accused  on ■ 

Common  law  rules  of,  when  applicable  to  conn  i-martial L98 

Competency  of  witnesses.    Set  Witn 

Compulsory  self-crimination  prohibited 


446  INLT  X. 

amber, 
■  the  Dumber.] 

I  i  •  ■niinued. 

,.  Inadmissibility  of,  aa  a  ilitj  of  facta  discovered 

by  reason  of 2 

ion,  musl  be  corroborated 225  (o) 

(  sion,  musl  be  voluntary  to  be  admissible 235  (o) 

dasion,  admissibility  of 197 

i  Ion  for  admission  in  evidence 225 

225 

Confession,  uncorroborated,  not  to  be  basis  for  charges 70 

weight  of ,  as 225 

w  hen  admissible » 

iictive  pardon  in  bar  of  (rial 273 

ements  out  of  court,  proof  of 262 

C<>n\  i                        te,  1 1 « > w  proved 258 

Conviction  of  crime,  when  admissible 258 

Courts-martial  required  to  try  matter  before  it  according  to 194 

Courl  of  inquiry,  testimony  taken  before  addition  of  new  members,  pro- 
cedure as  to 465 

Credibility  of  accused  as  a  witness,  how  attacked 261 

Deceased  witness,  evidence  of  at  former  trial,  admissibility  of 275 

Depositions.     See  Depositions.  . 

Documentary,  admitted  or  proved  handwriting  admissible  for  comparison. .  210 

Documentary,  authenticated  copies  of  documents  at  headquarters  of  Army, 

department,  division,  brigade,  etc.,  admissible 

Documentary,  books  of  account,  rub  as  to 244 

Documentary,  books  of  account  where  entrant  is  available  to  testify 244 

umentary,  certified  copies  of  documents,  expenses  of  obtaining,  how 

ble I93 

mentary,  civilian  witness,  procedure  to  obtain  from 106 

Db<  uinentary,  comparison  of  handwriting,  rule  as  to 240 

l  ry,  copies  when  admissible 238 

Documentary,  exceptions  to  best  evidence  rule 238 

Documentary,  manner  of  proving  contents  of  writing 237 

tentary,  maps,  photographs,  sketches,  etc,  a*  evidence 245 

Documentary,  memoranda,  introduction  as  evidence,  rujeasto 242 

Documentary,  memoranda,  us.'  of,  to  aid  memory,  etc 241,  243 

Documentary,  official  documents,  production  in  court 237 

Documentary,  official  writings 238 

.  oiiici.dwriiiJi-~.ceri.iin.  are  evidence  of  facts  recited  therein.  239 

Documentary,  original,  consisting  of  numerous  writings 237 

Documentary,  originals 197 

Documentary,  procedure  for  introducing  where  original  consists  of  numerous  237 

Documentary,  public  records,  official  copy  as  evidence 238 

Documentary,  War  Department  records,  authenticated  copies,  admissible. .  238 

Documentary,  when  copies  admissible 238 

Documentary,  when  memoranda  admissible 242 

Documentary,  when  writings  are  evidence  of  facts  stated  therein 238 

Drunkenness  a,s  showing  absence  of  Lntenl 285 

Druid;,  onese  in  military  cases  as  indicating  La<  b  of  intent 286 

Drunkenness,  proof  of 287 

Drunkenness,  when  admissible  as  defense 285, 286 

Duties  of  court  as  to  relevancy,  etc.,  of,  tendered 197 


INDEX.  447 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  lotters  "A.  \V."  preceding  the  number.] 

Evidence — Continued.  Par. 

Dying  declarations,  rule  as  to 222 

Examination  of  sources  of,  by  counsel 196 

Examination  of  sources  of,  by  judge  advocate 196 

Expert,  foundation  for 218 

Facts  of  which  courts  take  judicial  notice 289 

Former  testimony,  before  courts-martial,  proof  of 275 

Former  testimony  in  civil  courts  and  courts-martial,  when  admissible 275 

Former  testimony,  in  civil  courts,  proof  of 275 

Former  t  ssl  imony  in  court  of  inquiry,  when  admissible 272;  A. AY.  27 

Foundation  for  admission  of  confession 225 

Foundation  for  admission  of  statements  of  co- conspirators 224 

Foundation  for  introducing  contradictory  statements 262 

Foundation  for  introduction  of  writings 237 

General  remarks  as  to 194 

Gist  of  offenses  charged,  reading  to  court 197 

Handwriting ' 240 

Hearsay,  admissibility  of 197 

Hearsay,  effect  of  rank  upon  rule 221 

Hearsay,  exceptions 221 

Hearsay,  inadmissible,  illustrations  as  to 221  I  1-3) 

Improper  questions,  protection  of  witnesses  from 201 

Includes  all  matters  of  fact  introduced,  etc 194 

Incriminating  questions,  proceedure  when  asked 235 

Insanity  of  accused,  procedure  to  determine 219 

•  Interest  or  bias  as  affecting  admissibility  or  weight > 213 

Introduction  of  all  items  of,  in  open  court 194 

Issues  raised  in  case  to  be  elucidated  and  settled  by 195 

Judicial  notice 289 

Leading  questions,  grounds  for 254(1-5) 

Lost  or  destroyed  writings,  maimer  of  proving 2:;7 

Manner  of  proving  contents  of  writing * 237 

Marital  relationship,  rule  as  to  courts-martial  procedure 213  1  3) 

Materiality  and  relevancy  of.  '. 202 

Memoranda  to  refresh  recollection 241,  243 

Must  be  materia]  and  relevant 202 

Necessary  to  sustain  charge  of  absence  without  have p 

Necessary  to  sustain  charge  of  advising  another  to  desert p 

Necessary  to  sustain  charge  of  agreement  or  conspiracy  to  defraud  Ohito  d 

States  through  false  claims p 

Necessary  to  sustain  charge  of  arson P 

Necessary  to  sustain  charge  of  assault p 

Necessary  to  sustain  charge  of  assault  and  battery p 

Necessary  to  sustain  charge  of  assaulting  noncommissioned  officer p 

Necessary  to  sustain  charge  of  assaulting  superior  officer p 

Necessary  to  sustain  charge  of  assault  willi  intent  tocommil  manslaughter. .   p 

Necessary  to  sustain  charge  of  assault  with  intent  tocommil  rape p 

Necessa  in  charge  of  assaull  withintenl  to  commit  sodomy p 

Necessary  to  sustain  charge  of  assaull  with  intent  to  do  bodily  harm p 

■i  charge  of  assaull  with  intent  to  murder p 

■    Necessary  to  sustain  charge  of  assault  with  intent  to  rob p 

Necessary  to  sustain  charge  of  assisting  another  to  desert p 

53915°— 18 31 


205 
203 


L'.).) 

2*5 
212 
209 

271 
271 

272 
271 
272 
203 


448  imt.x. 

ed  by  the  letter  "P"  preceding  the  number 
and  Articles  ol  War  are  Indie  tted  bj  the  letters  "  a.  \\  ."  preceding  the  aua 

Par 

.  lustain  charge  of  attempting  t  mutiny p.  214 

je  of  attem]  Bate  Beditioo p.  214 

,M_v  to  sustain  chargi  ■  deserl p.  202 

ary  to  sustain  charge  of  1  r  joining  in  a  mutiny p.  214 

try  to  sustain  charge  of  being  :i  spy p.  '-'■'•" 

ary  to  sustain  charge  of  being  found  drunk  on  duty p.  241 

.  sustain  charge  of  being  found  drunk  on  post p.  242 

in  charge  of  being  found  sleeping  >>n  post 

■  susti lin  charg  P-  219 

burglary p-  256 

i  i  charge  of  casting  awaj  i  uunition 

•  sustain  charge  of  causing  or  exciting  a  mutiny p.  214 

.  to  sustain  charge  of  commanding  officer  being  interested  in  the 

ol  victuals,  etc > 

try  in  sustain  charge  of  committing  depredation  or  riot p.  216 

im  charge  of  committing  v  LI p.  245 

Necessary  to  Bustain  charge  of  condud  of  a  nature  to  bring  discredit  upon 
the  military  Bervice : 

•  sustain  charge  of  condud  unbecoming  an  officer  and  gentleman,  p.  28  L 
jlec<  tain  charge  of  crime  or  offense  nol  capital  under  general 

article  (A.  W.  96) PP-  2* 

Necessary    to    Bustain    charge    of    dealing    in    captured    oi    abandoned 

my P    233 

Necessary  to  sustain  charge  of  delivery  of  a  less  amount  than  thai  called 

for  by  receipt - P-  278 

Necessary  to  sustain  charge  of  desertion 284  (a 

Necessary  to  sustain  charge  of  disobedience  of  order  into  arrest  or  con- 
finement   p.  21? 

Necessary  to  sustain  charge  of  disorders  and  neglects  to  the  prejudice  of 

good  order  and  military  discipline P-  283 

Neci  istain  charge  of  disrespectful  behavior  toward  superior 

•  r. ;--■    1'    208 

Necessary  to  sustain  charges  of  disrespect  toward  Federal  or  State  officials.  p.  207 
Necessary  to  sustain  charge  of  drawing  weapon,  doing  violence  or  threat- 
ening upon  being  ordered  into  arrest  or  confinement p.  217 

hi  charge  of  dueling  or  aiding  in , p.  2  18 

ary  to  sustain  charge  of  embezzlement 

X,.,,  of  embezzlement,  larceny,  misappropriation, 

sale,  etc.,  of  military  property PP-  279  280 

Necessary  to  sustain  charge  of  entering  into  agreement  or  conspiracy  to 

defraud  United  States  through  false  claims p.  276 

Necessary  to  sustain  charge  of  entertaining  deserter  by  officer p.  204 

■  from  confinement p.  219 

Necessary  to  Bustain  charge  of  failure  or  delay  in  reporting  the  receipl  of 
captured  or  abandoned  property pp.  23 

Necessary   to  .  B  of  failure  to  give  information  of  mutiny  or 

ion ; P-  216 

if  failure  to  report  prisoners  received —  pp.220   121 

Nece  mutiny  or  sedition p.  215 

false  muster P-  199 

Necessary  to  sustain  charge  of  false  outh  iu  connection  with  claims p.  277 


INDEX.  449 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  tho  number, 
ami  Articles  at  War  are  indicated  by  the  letters  "A.  \V."  preceding  the  number.] 

Evidence — Continued.  Par. 

Necessary  to  sustain  charge  of  false  returns p.  200 

Necessary  to  sustain  charge  of  forcing  a  safeguard p.  23] 

B  iu  charge  of  forgery p.  286 

Necessary  bo  sustain  charge  oi  forgery  of  signature  in  connection  with 

claims p.  277 

Necessary  to  sustain  charge  of  fraud  against  the  Government pp.  273-280 

Necessary  to  BUStain  charge  of  fraudulent  enlistment p.  197 

Necessary  to  sustain  charge  of  giving  intelligence  to  the  enemy 

Necessary  to  sustain  charge  of  giving  parole  or  countersign  different  from 

that  received p.  230 

Necessary  to  sustain  charge  of  harboring  or  protecting  the  enemy p.  235 

Necessary  to  sustain  charge  of  holding  correspondence  with  the  enemy. .  p.  235 

Necessary  to  sustain  charge  of  improper  use  of  countersign p.  230 

Necessary  to  sustain  charge  of  inducing  abandonment  or  delivery  up  of 

command p.  227 

Necessary  to  sustain  charge  of  inducing  misbehavior  before  the  enemy. .  p.  227 
Necessary  to  sustain  charge  of  insubordinate  conduct  toward  noncom- 
missioned officer p.  212 

Necessary  to  sustain  charge  of  intimidation,   etc.,  of  persona   bringing 

provisions  to  camp,  etc p.  245 

Necessary  to  sustain  charge  of  joining  in  a  mutiny p.  214 

asary  to  sustain  charge  of  larceny p.  262 

Necessary  to  sustain  charge  of  laying  of  duty  or  impost  by  commanding 

office!  upon  the  bringing  of  victuals,  etc.,  into  fort,  camp,  etc p.  243 

•  ary  to  sustain  charge  of  making  known  parole  or  countersign p.  230 

Necessary  to  sustain  charge  of  making  or  delivering  receipt  without  hav- 
ing knowledge  that  it  is  true p.  278 

Necessary  to  sustain  charge  of  making  or  presenting  for  approval  a  false  or 

fraudulent  claim  against  the  Government pp.  274-275 

Necessary  to  sustain  charge  of  making,  using,  etc.,  false  writings  or  other 

papers  in  connection  with  claims p.  276 

-  sustain  charge  of  manslaughter p.  254 

Necessary  to  sustain  charge  of  mayhem p.  254 

Nece  .  n  charge  of  misbehavior  before  (iuuny p.  226 

Necessary  to  sustain  charge  of  misbehavior  of  sentinel pp.  242  2  13 

Necessary  to  sustain  charge  of  murder p.  251 

Necessary  to  sustain  charge  of  mutiny  and  sedition p.  2 1 3 

Accessary  to  sustain  charge  of  neglect  to  secure  captured  public  property 

for  public  service p.  232 

Necessary  to  sustain  charge  of  occasioning  false  alarms p.  228 

» sustain  charge  of  offense  under  general  article  (A.  W.  96).  pp. 

to  sustain  charge  of  omitting  to  render  returns p.  201 

-ary  to  sustain  eharge  of  perjury p.  266 

Necessary  to  sustain  charge  oi  personal  interest  by  commanding  officer  in 

sale  of  provisions.    ; 

Necessary  to  sustain  charge  of  persuading  another  to  desert 

Necessary  to  sustain  charge  of  presenting  or  causing  to  be  presented  for 

approval  Or  payment  a  false  or  fraudulent  claim p.  275 

Necessary  to  sustain  charge  oi  purchase  in  pledge  of  military 

property p.  280 

Necessary  to  sustain  charge  of  quitting  post  to  plunder  or  pillage p.  -:* 


450  iniu-.x. 

iRofer,,  be  letter"?  "preceding  the  nnmrjer, 

I  u  u  :ir«>  badloated  by  the  letters  "A.  W."  preoedinfl  tho  Dumber.] 

Evidence    Continued. 

Necessary  to  sustai  rape p.  252 

Bury  to  sustain  charge  of  recoil  ing  in  pledge  military  property p.  280 

Necessary  to  sustain  charge  oi  refusal  or  omission  by  commanding  officer 
to  Bee  reparation  made  for  damage  done  to  property  by  persons  in 

military  service P-  2"*6 

to  sustain  charge  of  refusal  to  deliver  accused  persons  to  civil 

authorities P-  2-5 

X.    essary  to  sustain  charge  of  refusal  to  "hey  order  placing  accused  in 

nfinemenl  under  A.  W.  68 217 

uy  to  sustain  charge  of  refusal  to  receive  ami  keep  prisoners p.  220 

Necessary  to  sustain  charge  of  refusing  to  aid  civil  authorities  in  appre- 

h(  ading  accused  persons -  -  --  P-  226 

,ry  to  sustain  charge  of  releasing  prisoner  without  proper  authority,  p.  222 

ary  to  Bustain  charge  of  relieving  or  aiding  enemy pp.  234-236 

uy  to  sustain  charge  of  retaining  deserter  by  officer p.  204 

ary  to  sustain  charge  of  robbery ]>•  263 

essary  to  sustain  charge  of  sale  or  wrongful  disposition  of  military 

property p.  239 

sustain  charge  of  sedition p.  213 

sustain  charge  of  sentinel  leaving  post  before  being  relieved  .  p.  2  13 

in  charge  of  shamefully  abandoning  command p.  227 

.  to  sustain  charge  of  shamefully  delivering  up  a  command  to  the 

enemy P-  — -7 

ary  to  sustain  charge  of  sleeping  on  post p.  242 

ary  to  l  ustain  <  barge  of  striking  noncommissioned  officer p.  212 

•  ■  i  sustain  charge  of  striking  superior  officer : p.  209 

Necessary  to  sustain  charge  of  subordinates  compelling  commander  to 

•or  al landon  command 

to  -ustain  charge  of  spoliation,  etc.,  of  military  property 

i  sustain  charge  of  suffering  prisoner  to  escape  through  design,  p.  223 
try  to  sustain  charge  of  suffering  prisoner  to  escape  through  neglecl .  p.  222 
Necessary   to  sustain  charge  of  threatening,  drawing  weapon  upon,  or 
offering  violence  to  officer  or  noncommissioned  officer  ordering  per-  a 

into  arrest  or  confinement ]'•  217 

to  sustain  charge  of  unlawful  enlistment  by  officer p.  L98 

I  unlawful  muster  in,  by  officer p.  L98 

to  sustain  charge  of  using  provoking  or  reproachful  speeches  or 

ues p.  247 

of  wilful  or  negligent  injury  to,  or  loss  of, 

military  property - •  P-  239 

to  su  tain  charge  of  wrongful  appropriation  of  captured  public 

proper!  y P-  232 

E  wilfully  destroying  property p.  246 

to  sustain  charge  of  wilfully  disobeying  superior  officer p.  210 

>;,,:  to  l  e  pleaded 7 '   ''\ 

Lon  of  other  clinics,  when  adnii.-sil.lc 206 

always  admitted  in  military  cases -s<> 

( if  former  acquittal  or  conviction 274 

Of  former  convictions,  v. hen  to  accompany  charges 75(5) 

Of  form.r  trial  by  court-martial  or  civil  <  ourt - 274 

Of  general  orders,  special  orders,  etc 289 


INDEX.  451 

[References  ure  (o  paragraphs,  except  where  pa.ws  arc  indicated  by  the  letter  "  P"  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  loiters  "  A.  W."  preceding  the  number.] 

Evidence    Continued.  Par. 

Of  good  character— summary  court 351  (e) 

Of  handwriting 240 

Of  intent  in  military  cases,  when  required 281 

Of  pardon 273 

Of  previous  com  ictions,  disposition  of p.  334 

Of  previous  convictions  of  soldier —summary  courts-martial 351  (g) 

Of  previous  conviction  to  accompany  charges 75 .   p.  333 

Of  previous  convictions,  use  of 30G,  307 

Of  reputation,  when  admissible 257 

Opening  statement  by  counsel  and  judge  advocate 197 

Opinion,  where  experts'  required 218 

1  'a  ymenl  of  reward  as,  of  desertion 284 

Plea  of  guilty  not  to  exclude  taking  of 154  (c) 

Prejudice  of  witness,  how  proved 2G0 

Presumptions  as  to  intent  in  connection  with  crimes 2^0 

Presumptions  of  fact,  defined  and  illustrated 278 

Presumption  of  fact,  effect  of 278 

Presumptions  of  law  denned 277 

Presumption  of  law,  effect  of 277 

Prima  facie,  effect  on  doctrine  of  reasonable  doubt 279 

Privileged  communications 227- 2. .2 

Privileged  communications,  attorney  and  client,  communications  between.       227 
Privileged  communications,  attorney  and  client,  outside  parties  who  over- 
hear may  testify 227 

Privileged  communications,  communications  between  civilian  physicia*ns 

and  patients  not 232 

Privileged  communications,  communications  from  officers  or  soldiers  to 

medical  officers  not 231 

Privileged  communications,  confidential  papers,  reports,  etc 230 

Privileged  communications,  defined 227 

Privileged  communications,  defined  as  protected  at  common  law,  etc 227 

Privileged  communications,  deliberations  of  courts 227 

Privileged  communications,  grand  juries,  deliberations  of 227 

Privileged  communications,  heads  of  departments,  official  communications 

hot  ween 227 

Privileged  communications,  husband  and  wife,  communications  between.  227,  228 
Privileged  communications,  husband  and  wife,  outside  parties  who  over- 
hear may  testily 

Privileged  communications,  inspection  reports,  special,  by  Inspector  Gen- 
eral's Department 230 

Privileged  communications,  juries,  grand  and  petit,  deliberations  of 227 

Privileged  communications,  official  communications  between  heads  of  de- 
partments        227 

Privileged  communications,  police  secrets 227 

Privileged  communications,  prh  ilegeofwifeand  husband  to  testify 228 

Privileged  communications,  repot  a  of  rudge  Advocate  General  to  Secre- 
tary of  War 230 

Privileged  communicat  ions,  statesecrets,  communical  ions  classed  as 227 

Privileged  communications,  U  legrams  are  not 229 

Privilege  L  communications,  wife  to  testify  in  prosecution  for  bigamy,  etc..      228 
Procedure  where  alleged  incriminating  question  is  asked 235 


]Ni>i;\. 

1'i.li    1 1 '-« i  liv  I  ho  lot  t  it  ■•  1'"  prf-.-.iiii.;  tha  ■ 

.  •  .•  Die  iiamlior.l 

Evidence    Continued.  P  • 

Procedure  where  testimony  in  Conner  trial  of  witness  now  dead  or  beyond 

fered 275 

Proof  of  contradictory  Btatemen  >url 2G2 

Eoundatii  a  for  introduction  of  writings 237 

■  ion  of  witnesses  from  improper  questions 201 

Questions  tending  to  degrade  not  material  to  the  issue —  233,  233  (a  ;  A.  Vi 
Record  of  courl  of  inquiry  nol  admissible  in  cases  capital  <>r  those  extend- 
ing to  dismissal  "i"  officer 

Relationship  of  witness,  how  proved 260 

ancy  and  materiality  oi 195, 196    I 

ions  as  to  whal  constitutes 223 

Elesgesta,  rule  as  to 223 

ted  i"  thai  which  is  competent,  relevant,  and  nun  (.'rial L97 

Rule  absolute  as  to  Belf-crimination 

Rule  as  to  questions  tending  to  degrade - 

Rule  forbidding  hearsay 220 

■martial 1!,s-  l:;:) 

stolen  property  as  evidence  of  Larceny 

Secondary,  when  admissible -' :7 

Self-contradiction,  how  proved 

Self-crimination,  privilege  against,  a  persona]  one 234;  A.  \\ .  ill 

Self-crimination,  requiring  accused  te  submil  bo  physical  examination  is 

236 

accused 205 

.  conspirato]  -  and  accomplices,  when  admissible 

Statemenl  of  Ben  i  I,  examination  by  court,  time  of 271 

Statement  oi  service,  use  for  proof  oi  good  character 

Statutory  rules  as  to  desertion  oi  officer 284   a);  A.  W.  28 

ory  rules  as  to  desertion  of  soldier 284  (a);  A.  W.  29 

ency  of,  to  sustain  conviction 24 

Summary  oi  anticipated  evidence,  when  to  accompany  eharges 

Tendered,  duties  oi  court  as  to I:': 

Testimonial,  definition  and  illustration  oi 

Testimonial  knowledge,  rule  as  to 220 

Lonial,  oi  v,  i  1  to  facts  within  his  i  uov  ledge 220 

Weight  given  to  testimony  ol  witnesses '■'  • 

W.  iu'lit  of,  direel  and  circumstantial  compared 203,  204 

Weighl  oi,  how  determined 

Weight  t"  be  given  confessions '-"-•> 

When  corroborative,  required 248 

When  statement  of,  bo  accompany  charges "■'»  (a  :  !'•  :;:;:; 

Witnessea    Set  Witnee 
Writings.    8ee  Documentary,  this  title. 
Bxc<  p1  ion«  and  substitui 

Findings  varying  from  specifications  as  to  date  or  place 7 1  9) 

Guill  "  Luded  offence 298 

with 299 

aoi      oeral  for  specific  article  in  the  charge 300 

inga  mutiny,  denned !'•  '-'  [ 

Execution: 

Bfined P-  2°9 

Of  sentences  in  penitentiary *38 


ixdex.  453 

[Refer.  (graphs,  except  where  pages  are  indicated  by  the  letter  ••  P"  preceding  the  Dumber, 

imd  Article. s  of  War  are  indicated  by  the  letters  "  \.  \Y."  preceding  the  number  ] 

Par. 

Executive  ord it  prescribing  maximum  limits  of  punishment 349 

Administrative  rules 349;  p.  10!) 

Articles  5  and  8  in  force  during  time  of  war pp.  L68,  L69 

Dishonorable  discharge  upon  five  or  more  previous  convictions p.  168 

Effect  and  application  of 343 ;  p.  1  i;s 

Limits  of.  not  applicable  in  time  of  war 348 

President  authorized  to  prescribe 348 

When  effective 349 

Expenses: 

( )f  court-martial  reporter 1 1:5 

Voucher  for  reimbursement  of  traveling p.  ,n\ 

Experts: 

Capacity  to  testify  as 218 

Employment  of,  as  witnesses L92 

Expert  witness,  defined 218 

False  alarms,  occasioning 41,  347,  425;  pp.  228,  341-342;  A.  W.  75 

False  claims  against  the  Government 444;  pp.  346-348:  A.  W.  94 

False  muster 40  n.  281,  407 ;  p.  337 ;  A.  W.  56 

False  oath,  in  connection  with  claims 444;  pp.  277,  347-348;  A.  W.  94 

False  returns 40  n.  281, 408;  p.  338;  A.  W.  57 

False  testimony p.  264 

False  writing: 

Defined p.  284 

In  connection  with  claims 444;  pp.  276,  347-3 48;  A.  W.  94 

Fees: 

For  service  of  subpoenas L91 

F<  >r  taking  depositions 1-1 

Fees  of  witnesses 17©,  172,  1 83  185,  1 93 

Civilians  in  Government  employ,  transportation  in  kind,  etc 184 

Chilians  not  in  Government  employ 185 

Enlisted  men.  active 183 

Enlisted  men.  retired 183 

oses  of.  how  payable 193 

In  Alaska,  mileage  and 185  (6) 

In  Cuba,  mileage  and 

In  Philippine  Islands,  mileage  and 

In  Porto  Rico,  mileage  and 185  (a) 

In  Western  States,  mileage  and L85  (c) 

Officers,  active L83 

( officers,  retired L83 

Tender  of,  preliminary  to   prosecution  of   civilian  witness    for  failure  to 

appear,  ete 170,172 

Felony: 

Assault  with  intent  to  commit pp.  266,  346, 443;   A.  W.  93 

By  persons  subject  to  military  law ;  p.  346;  A..  W.  93 

Should  not  be  tried  by  special  or  summary  courts-martial 78 

Field  bakery,  when  a  detachment  for  disciplinary  purposes 28 

Field  clerks.  Army,  BUbject  to  Articles  of  War 

Field  clerks,  Quartermaster  Corps.  subject  to  Articles  of  War 

Field  signal  battalion,  when  a  detachment  for  disciplinary  purposes 28 

Files: 

.;'.  power  of  court-martial  to  impose,  as  punishment 390 

Power  of  President  to  restore,  when  sentence  of  court-martial  is  loss  of 390! 

A.  W.  50 


454  INDEX. 


ptpba,  exoept  wt  Indicated  by  the  totter  "P"- preceding  the mnahy, 

i  War  an  Indicated  by  the  letters  "A.  W."  preoeding  the  number.] 

Findings 90,  294-306,  351  if),  :>::  (o)  401,  169 

Closing  of  court  for P 

Duties  of  trial  judge  advocates  as  to P 

Effect  of  tie  vote 90 

General  principleB  as  to 

Guilty  of  general  rather  than  Bpecific  article 300 

included  offense ' 

Of  court  of  inq  tdry "i '  ■ 469 

Of  courts-marl  ial 294-305 

Ofguiltj 

Of  guilty  of  Lesser  included  offense 

of  summary  court-martial 351  (/) 

Reasons  for.  may  be  Bpr<  ad  on  record 302 

Record  of.  by  reporter 305 

Substitution  of  ueneral  for  specific  article 300 

Tie  vote,  effecl  of 90 

Under  charge  of  drunkenness 304 

Where  no  criminality  is  involved 303 

With  exec] >t ions  and  sul ist  it ut ions 299 

Fine,  punishment  by -•-■        '''; 

Finger  prints,  introduction  of  as  evidence 256,  239,245 

Lng,  punishment  by,  prohibited 344;  A.  \\ .  41 

Foreign  country: 

Powers  of  consular  officers  granted  to  certain  Army  officers  where  Army  is 

serving 138(6);  A.  V.  114 

Powers  of  notary  public  granted  to  certain  Army  officers  where  Army  is 

aervingin.... 133(6);  A.  W.  lit 

Taking  depositions  in 

Forfeiture: 

Of  deposits '^' 

( )f  pay  and  allowances 32  I 

Sentence  of,  against  soldier  does  not  include  class  A  allotment  under  war 
risk  insurance  act  and  whenever  practicable  should  not.  include  class  B 

allotmenl 311, 311  d 

For  ery 11,i-  pp.  284, 286, 352 ;  A.  W.  96 

[n  connection  with  claims 444;  pp.  277,347  348;  A.  \Y.  94 

■ 

Action  on  sentence  by  reviewing  authority 395;  pp.371  373 

Char  i  aeral  prisoner - 

fications  under  Articles  of  War 74  •  352A 

I 1 '   333 

itions  taken  upon  interrogatories P    '^ 

rt-martia]  order p.  375 

General  court  martial,  order  appointing P-  332  a 

II.  beae  corpus  by  s  rite  court,  for  prisoner,  return  to  writ P-392 

Eabeas  corpus  by  State  court,  for  witness,  return  to  writ pp.  389,  390 

Habeas  i  orpus  by  United  States  court,  for  prisoner,  return  to  writ.,  pp.  390-391 

Habea  United  States  court,  for  witness,  return  to  writ p.  389 

Inquest,  report  of P;  *"** 

[nterrogatories  and  depositions P-  379 

Pleading  change  of  rank 74  (a-) 

Elecord  of  trial  by  general  curt  martial,  and  revision  proceedings...  pp.  ! 
Record  of  trial  by  special  court-martial PP-  365-366 


INDEX.  455 

[Reference  arc  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  ■' P  "  preredinp  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Forms — Continued.  Par 

Record  of  trial  by  summary  court p.  367 

Report  of  inquest p.  409 

Reviewing  authority,  orders  vacating  suspension  of  sentence I>.  :;::; 

Reviewing  authority,  original  action  by p.  371 

Revision  of  record  of  general  court-martial pp.  363-364 

Sentences  by  courts-martial pp.  369-370 

Special  court-martial  order p.  375 

Special  court-martial,  order  appointing p.  332  a 

Suspensions,  orders  vacating  by  reviewing  authority p.  373 

Vouch*  r  for  compensation  of  civilian  witness p.  397 

Voucher  for  personal  services  of  reporter p.  405 

Voucher  for  reimbursement  of  traveling  expenses  of  civilian  witness p.  401 

Warrant  of  attachment p.  387 

Forwarding  of  charges 76 

Fraud: 

See  also  Fraudulent  enlistment. 

Against  the  Government  or  officers  thereof 35, 

38,  74  (o),  149,  286,  347,  444;  pp.  346-34S;  A.  W.  94 
Against  the  Government,  oaths  in  connection  with  investigation  of,  by 

whom  administered ' 13s  (a) 

ost  the  Government,  statutes  of  limitations  as  to 149  (2) 

1  tischarge  obtained  by.  effect  of 3s  (d) 

Publication  of  dismissal  of  officer  for 347 

Fraudulent  enlistment 60,  74  (n).  149, 281, 405;  pp.  335-337,  393-396;  A.  W.  54 

By  deserter,  how  charged 74  (n) 

Confession  uncorroborated  not  basis  for  charges 70 

Defined 149  (3/);  pp.  196, 197 

Elements  of p.  197 

Misrepresentation  or  concealment  of  qualifications 405;  A.  W.  5-i 

"When  second  trial  for,  is  double  jeopardy 149  (3/) 

Fra\  : 

Defined p   216 

Power  of  officers  and  noncommissioned  officers  to  stop 47,  52,  419;  pp.  216, 

340,  A.  W.  68 

Garrison  courts-martial,  abolished 5  n 

Genera  artial.    See  Courts-martial,  general. 

General  issue.     See  Pleading. 

General  officer,  confirmation  of  sentence  of 378  (a),  A.  W.  48 

General  Order  No.  7,  1918,  explained pp.  411-414 

General  Orders,  how  proved 289 

General  prisoner: 

•  Confinement  in  disciplinary  barracks,  when  proper 397 

Confinement  in  penitentiary,  when  proper 396 

Confim  menl  in  post,  when  proper 398 

Defined 

by 71     m 

Pleading  of  feci  thai  accused  is 74  (j) 

Return  towril  of  habeas  corpus  issuing  oul  of  State  court  to  produce.  478  (b);  p.  393 
Return  to  writ  of  habeas  corpus  issuing  out  of    United  States  court  to 

produce 479;  p.  390 

Segtt    ation  oi      aeral  prisoners 399 

Sentence  of,  restricted  to  additional  confinement  at  hard  labor 330 


456  INDEX. 

u-osareto  par  i  -  the  ruimlwr, 

and  IrttolM  of  War  u»indlcatad  bj  tba  letters  ••  a.  (y."preaadiag  the  number.] 

Par. 

eman,  conduct  unbecoming  an  officer  and 445;  pp.348  849!  A..  W.  96 

Gestures,  reproachful  <t  provoking -i  io;  p.  :;  t:):  a.  \\\  <»o 

« I I  order 

Maintenance  of 439,  481;  p  345;  A    W.  c;> 

Maintenance  of,  redTeea  of  wrongs 481;  A  W.  105 

I         rnmenl  empl  Witnesses. 

rnment,  frauds  against 35,  38, 

74(o)i  L48   286,347,  HI;  pp.  346-348;  A.  W.  94 
(irand  juries,  deliberations  of.    See  Evidence-,  privileged  communical 

Gratuity,  wrongful  taking  of  money,  etc.,  on  muster 281 

UK:  p  337;  A    i 

Guard,  absence  from,  without  leav tin.  L49 

(3)  (e),  281,  283-28!.  412;  p.  3:5!);  A.  \Y.  01 
Guilty: 

Finding  of 297 

Finding  of,  oi  lesser  included  offense 298 

Finding  of,  power  to  approve  in  whole  or  in  part 377  (a) 

Finding  of.  with  exceptions  and  substitutions 299 

Plea  of.  effect  to  be  explained  to  accused 99 

Plea  of,  in  summary  court,  explanation  to  accused 351  (d) 

Habeas  corpus 33,  476-480,  pp.  389-396 

See  also  Warrant  oi  atta<  bment. 

Brief  to  he  Hied  with  return  to  writ  issued  by  United  stut-^  court  to  obtain 

discharge  of  minor p.  393 

Contents  of  return  to  writ  by  State  Court 478 

Contents  of  return  to  writ  by  United  States  court 479 

Form  of  return  to  writ  issued  by  State  court  to  obtain  release  of  prisoner. .  p.  3!)2 
Form  of  return  to  writ  issued  by  State  court  to  obtain  release  of  witness...  p.  3!>0 
Form  of  return  to  writ  issued  by  United  States  court  to  obtain  release  of 

prisoner p.  389 

Form  of  return  to  writ  issued  by  United  States  court  to  obtain  release  of 

witness p.  389 

Is8ue  of  writ  in  Philippine  Islands 4^-0 

Jurisdiction  of  State  courts  to  is^ue  writ 477 

Purpose  of  writ 476 

Return  of  commanding  general  to  writ  issued  in  Philippine  Islands  when 

conclush  e 480 

Return  to  writ  issued  by  State  court 478 

Return  to  writ  issued  by  United  Stales  court 479 

Rel  urn  to  w  lit  issuing  out  of  State  court  in  case  of  an  enlisted  man -178  (b) 

Return  to  writ  issuing  out  of  state  court  in  aeral  prisoner. . . 

Return  to  writ  issuing  out  of  State  court  when  witness  held  under  warrant 

oi  attachment 478  (<>) 

To  review  judgmenl  of  courts-martial 33 

Where  restraint  i.,  by  United  States,  State  court  without  authority 477 

Hand  ■•■Hi ing,  comparison  of.  documentary  evidence 240 

Hard  labor: 

Confinement  at 322 

Without  confinement 32:;,  349;  p.  L69 

Hawaiian  Territory,  trial  in  either  military  or  civil  courts  in,  is  bar  to  trial  in 
other  ior  same  acta 14!)  ('.id) 


index.  457 

[References  are  to  pnraenphs,  except  where  pages,  are  Indicated  by  (he  letter  "P"  preceding  than 
and  Articles  of  War  are  indicated  by  the  letters  "  A.  \\V  preceding  the  number.] 

Homicide:  Par 

A ccidental p.  250 

By  sentinel  to  prevent  escape  of  prisoner p 

Death  must  result  within  year  and  a  day p 

In  compliance  with  orders  or  supposed  duty p 


In  seli'-.i 


250 
p.  250 
Justifiahle p.  249 

Horses,  losing,  injuring,  etc 74  (<•),  281,  299,  434;  p.  344;  A.  \V.  M 

W  id   and  wife: 

Competency  of,  as  witnesses 213 

Idaho,  fees  and  mileage  of  civilian  witnesses  in 1 85  (c) 

Identification: 

( 'ompeUing  accused  to  exhibit  body  for  purpose  of 236 

Proper  procedure  to  establish  identity  of  accused  by  examination  of  his 
person 

Ignorance  oi  fact  as  a  defense ; 

Ignorance  of  law: 

Art  ides  of  war,  certain  to  be  read  to  enlisted  men 2s2 

Responsibility  of  person,  notwithstanding 282 

Incriminating  questions,  prohibition  of 214-215,  233-236;  A.  W.  J  4 

Incrimination.     See  Self-crimination. 

Indirect,  evidence  deft  tied 202 

Inducing  misbehavior  before  the  enemy,  etc 425;  p.  342;  A .  W.  75 

Injury  to  person  or  property,  redress  for 481;  A.  W.  105 

Innocence,  presumption  of,  evidence  to  overcome 279 

In- 1  Lesta,  duties  of  summary  court  to  investigate  sudden,  violent,  and  unnat- 
ural deaths 483;  p.  409;  A.  W.  L13 

it,  form  of  report p.  109 

Insanity: 

As  affecting  competency  of  witness 212 

At  time  offenses  were  committed,  defense  under  general  issue J  54  (g) 

Duty  of  judge  advocate  where  accused  insane 2 1 9 

Failure  to  plead  as  result  of,  action  to  be  taken 155 

Of  accused,  procedure  to  determine,  where  it  becomes  issue 219 

moral's  Department,  special  inspection  reports.     See  Evident,., 
privileged  communications. 

Insubordination  toward  nonceinmissioned  officers 

443  (IX);  pp.  339  340;  A.  W.  65 

Insubordination  toward  superior  officer 415.  t43  (IX);  p.  339;  A.  W.  6  \ 

Insular  .  fees  and  mileage,  civilian  witnesses  in 185  (a-c) 

! 

De-ertion,  presumption  as  to  continued  absence  without  leave 284 

I  drunkenness  as  showing  absence  ef 285 

Drunkenness  in  military  cases  as  Indicating  lack  of 286 

'-hnient  in  evidence,  when  required 

Presumption  of.  in  connection  with  crime I 

To  commit  a  felony,  assault  with pp.  266,  346,  W3;  A.  W.  93 

When  •  plead 

When  required  to  lie  proved I  ■ 

Interest,  as  affecting  competency  or  credibility  of  witness 

Interested,  defined pp.  243-244 


458  INDEX. 

[Reference*  are  to  para  ted  by  the  letter  "P"pr 

'irUs  of  \\';ir  .ire  indi<  ited  by  the  letters  "  \.  \v."  preceding  tbe  number.] 

Interpreter:  par. 

Appointment  of 119,  136,  457;  A.  \Y.  L9,  L15 

Appointment  of,  for  court  of  inquiry 457 

Courl  'if  inquiry,  oath  of 4GG 

Courts-martial,  oath  of 136;  A.  W.  19 

Courts-martial,  pay  of 119;  A.  W.  i  15 

Lnterro  atories.    Set  Depositions. 

[ntimidat  ion  of  pens  >na  bringing  provisions  to  camp,  etc.  .438;  pp.  33  I  335;  \ .  W.  ^8 
I  competency  of  witness 212 

I  igation: 

:>■{  of  inquiry 1  !7  175 

lit  of  inquiry,  attendance  of  person  being  investigated 462 

By  com  t  "i"  inquiry,  revision  of 471 

( )i  charge  b,  procedure  for 76 

Officers  detailed   to  make,   may  administer  oaths  for  military  purposes, 

etc L38(o)  (6) 

Iden,  violent,  and  unnatural  deaths  by  summary  court 483 

Irons: 

■  I  tried  in  i'-ons,  effect  of 88 

When  accused  may  be  tried  in .- 88 

When  tay  be  placed  in 56 

Jeopardy,  double.     See  Double  jeopard}  . 

Joining  in.  defined p..  214 

Joint  accused: 

Motion  to  sever  by  one  of  two  or  more 156 

!  se  of  one  of  the  accused  as  witness  by  prosecution 156 

Joint  cha 

Acquittal  or  conviction  on,  effect  of 301 

Lof 69 

Joint  offense: 

Defined 69 

Joinl  trial  permitted 69 

Separate  trials  permitted 69 

Joint  pr  eecution,  when  permissible 69 

Joihl  trial,  extra  copies  of  record 117 

.in. I-,  a 

Administration  of  oaths  by 91,  L33-138;  A.  W.  19.  II  i 

Advice  to  accused 96;  A.  W.  17 

Advice  to  curt 99,101;  A.  W.  30 

Analysis  of  evidence  by 196 

Appointment  of 30,94,  L06;  A.  W.  II 

ml 30,94,  106  107;  A.  W.  11,116 

Authentication  of  record 95 

Certify  voucher  of  ci\  ilian  v.  itness 187 

( !hallenge  by 133 

<  Jhallenge  of 120 

Conduct  of,  during  trial 86 

Death,  disability,  or  absence  of ,  during  trial;  authenticated  record 95 

Denned L07 

Detail  of  soldiers  to  as.si.st 105 

Dm  i  iter 9".   L03,  L23,  L33,  pp.  353  356;  A.  W.  17.  116 

Duties  of 31,84,94    Kit.  i :.':;.  L32  137,219,266;  pp.  353  356;  A.  W.  11.17 


INDEX.  459 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  the  number, 
and  Articles  of  War  aro  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Judge  advocate— Continued.  Par. 

Duties  toward  accused 96 

Duty  as  to  absence  of  member  of  court-martial 85 

Duty  as  to  findings p.  355 

Duty  as  to  order  convening  court 97 

Duty  as  to  preparation  of  case 196 

Duty  as  to  roll  call 84 

Duty  as  to  self-crimination  by  witness 234 

Duty  to  expedite  trials 103 

Duty  to  notify  court-martial  of  illegalities  or  irregularities  in  its  proceed- 
ings          99 

Duty  to  present  wbole  truth  of  case 98 

Duty  upon  receipt  of  depositions 266 

Duty  where  accused  is  or  appears  to  be  insane 219 

Duty  where  general  court-martial  is,  or  is  likely  to  be,  reduced  below  a 

quorum 7  (a) 

Duty  where  membership  of  special  court-martial  is  reduced  below  mini- 
mum       7(6) 

Duty  where  personally  interested  or  hostile  toward  accused 102 

Examination  of  sources  of  evidence 196 

Has  right  to  challenge 123 

How  appointed 30;  A.  W.  81 

How  far  controlled  by  court 100 

Legal  adviser  of  court-martial 99, 101 

May  act  as  notary  public  in  foreign  places  where  Army  is  serving .  138  (6);  A.  W.  114 

May  administer  oaths  for  military  purposes 138  (b)\  A.  W.  114 

Notary,  right  to  act  as  in  foreign  places 138(6);  A. W.  114 

Not  subject  to  challenge 120 

Oath,  additional  ceremony  to  bind  conscience  of 132  (d) 

Oath  of 133;  A.  W.  19 

Oaths,  administration  of,  by : 91,132,138;  A.  W.  19,114 

Opening  statement  by 197 

Power  of,  as  to  arrests 47 

Preparation  for  trial,  as  to  admissibility  of  evidence 199 

Qualifications  of 94 

Record  of  proceedings 95,354-368;  pp.  353  356;  A.  W.  17,33-36 

Report  of  result  of  trial  to  commanding  officer 332  a 

Right  to  administer  oath  or  act  as  notary 138  (6);  A.  \V.  1 1  i 

Selection  of 94 

Suggestions  for  preparation  of  cases  for  trial pp.  353-356 

im  to  be  worn  at  trial 82 

Weekly  report 104;  p.  356 

Where  seated  in  court 83 

.Indue  Advocate  General: 

Reports  to  Secretary  of  War.    See  Privileged  communications. 
To  review  all  cases  involving  punishment  by  death  or  dismissal  before  exe- 
cution   of    sentence— G.  O.  7,  W.  D.,  1918,   and    regulations    there- 
under    PP-  411>  414 

Judicial  notice: 

I  ».  sfined 289 

Facts  of  which  courts-martial  take 289 

Facts  of  which  courts  take,  to  be  considered  as  evid<  nee 194 

Procedure  of  court-martial  as  to 289 


4ti()  INDEX. 

idicated  by  ;: 
and  article*  ol  War  are  Indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Juriadiction:  |,,r 

Military,  ool  territorial :;7 

Military,  when  exclusive 35 

(  M"  ch  il  and  military  courts,  when  i  oncurrenl 

( if  emu  ts  martial 

Of  courtB-martial,  as  affected  by  maximum  punishmei  I  e 78 

<»f  court-martial,  how  affei   •  ence  of  judge  advocate  in  cl  - 

u "" 

Of  courtB-martial,  bow  divested 

Of  courts-martial,  is  exclusively  criminal 33 

Of  courts-martial,  requisites  of ■  '■ 

( »f  courts-martial,  termination  of 38 

<  tf  courts-martial,  when  concurrent  with  other  military  tribunals 45 

<  if  courts-martial,  when  terminated 

<  if  courts  of  inquiry ' 

Of  departmenl  commander  o>  er  accused  after  approval  of  sentence 402 

Procedure  whene  concurrent,  military  and  civil 

Knowingly,  denned P-   1!IS 

Knowledge,  defined PP-  ''■- 

Larceny. 149,280,285,  143;  p.  346;  A.  W.  93 

And  sale  of  public  property,  how  charged 7  1    o);  A.  W.  94 

Defined P-  257 

Evidence  of M 

Of  military  property : 444;  p.  279;  A.  W.  94 

Statute  of  limitations '  1:' 

Lawful  order  defined p.  210 

Leading  questions 

Lesser  included  offenses.  ;  Sentences,  approval   of  lesser  in- 

cluded offenses;  Sentences,  power  to  confirm  part  of  finding. 

Power  to  approve 

Power  to  confirm 

Power  toconvid  of 

Limitation  as  to  number  of  trials  for  .-ame  offense.     See  Double  jeopardy. 
Limitations: 

Upon  applications  for  clemency 404 

Upon  power  to  convene  court  of  inquiry 448 

Limitations  of  disciplinary  power 333 

Limitations,  Btatuteof 149,451;  A.  W.  39 

Application  to  trial  by  court  of  inquiry 

Limits  of  punishment 40, 42, 44. 30  • 

330-333,340-349;  pp.  3G9-370,  375-377  ;  A    U 

Lose,  defined PP*  23 

I  pay,  mitigation  of  sentence  of 

oi  records  of  trial  before  re\  Lowing  authority  has  acted 

Malice  aforethought,  defined P-  -■■" 

Malice  defined P-  -'" 

Manslaughter 35,  1 19,  280,  2s:..  !  i:;:  ,,. :;  n;;  A   W    93 

It  with  intent  to  commit 443;  p.269.;  A.  W.93 

ed 1'  -;,:; 

Statute  of  limitations 1J<J 

Ma].-,  as  evidence,  when  admissible 245 


INDEX.  401 

[References  are  to  paragraphs,  except  where  paces  are  indicated  by  the  letter  "  P  "  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  lettors  "A.  \\V*  preceding  the  number.] 

Marino  Corps:  Par 

When  members  of,  subject  to  Vrticlee  of  War 4  (c),  (d)  n;  A.  W.  2 

When  members  of ,  triable  by  military  court-martial  and  when  by  naval 

court-martial 4  ((/)  n 

When  officers  of,  eligible  for  membership  on  court-martial ]0 

Marking,  punishment  by,  prohibited 344;  a.  W.  4] 

Martial  law  : 

Defined 2  (b-c) 

Kinds  of 2  (6-c) 

Materiality  of  evidence,  defined 202 

Maximum  punishment,  accused,  on  plea  of  guilty ,  to  be  advised  as  to 154(d) 

Maximum  punishments: 

Executive  order  effective  March  I,  X917 348-349 

Executive  order  not  in  effect  during  time  of  war.  except  articles  5  and  8. .       3-l9 

Equivalents  of 349;  p>  167 

General  limitations  upon 349;  p  \q-j 

Mayhem 35,  443 ;  pp.  254,  346;  A.  W.  93 


p.  254 


runishment  for 443;  A.  W.  93 

Statute  of  limitations 149 

Medical  Board: 

Observation  and  report  of  accused  where  insanity  is  an  issue 219 

Medical  1  >epartment  of  Na\  y,  when  members  of.  subject  to  Articles  of  War 4(d) 

Medical  officers,  communications  from  officers  or  soldiers  to,  not  privileged  .  . .       231 

Medical  officer,  when  arrest  authorized 51 

Medical  treatment,  refusal  to  submit  to gg 

Memoranda.     See  this  title,  Evidence. 

Members,  of  Courts-Martial.    See  this  title,  Courts-martial. 

Mileage : 

Civilian  witnesses,  expenses  of,  from  what  appropriation  payable 193 

<  'i  vilian  witnesses,  payment  for  return  journey 186 

Civilian  witnesses,  rales 1§5 

Civilian  witnesses,  rates  in  insular  possessions 185  <u-c) 

Ci\  ilian  witnesses,  rales  in  Western  States 185  (c). 

Civilian  witnesses,  tender  of,  preliminary  to  prosecution  for  failure  to  obey 

subpoena 170  170 

Court-martial  reporter ]  ] 3  (e) 

Military  Academy: 

Authority  of  superintendent  to  convene  court-martial 14.  It!;  A.W.8  L2 

Jurisdiction  of  courts-martial  appointed  by  superintendent...  14, 16;  A.  W.  s.  12 

Military  boards: 

President  and  recorder  of,  administration  of  oaths  for  military  purposes, 

etc 138(6);  A.  W.  114 

President  and  recorder  of,  powers  of  notary  public  in  foreign  places  where 

Army  is  serving 138  (6);  A.  W.  114 

Military  commission : 

Concurrent  jurisdiction  with  court-martial 2,3, 46:  A.  W.  r> 

Record  of  court  of  inquiry  admissible  as  evidence  before 272;  A.  W.  27 

Witnesses,  refusal  to  appear  or  testify,  punishment  for 170;  A.  W.  23 

Military  discipline,  conduct  prejudicial  to 35,  71,  7  1 1.  .  90,  L73,  231,23?^ 

286,  294,  300,  415,  420.  423,  446.  460;  pp.  282,  336  W. 


462  INDEX. 

[Reference  rn-r  to  pnrnrroph5,  except  where  pages  ere  Indicated  b    the  letter  "P"  preceding  the  number, 
end  \  n  i-  -I.--. if  War  are  Indicated  by  theletters"A.  W."  preceding  the  number.] 

Military  governm<  Par. 

I  defined 2  (n) 

Duration  <>>' 2  («) 

Military  jurisdiction: 

,  rurisdiction;  « ' i  -  it  courts;  Civil  authorities;  Civil  offenses. 

Courts  exercising 3 

Kinds  of 2 

Nol  territorial 37 

Source  of 1 

'I  hrough  what  tribunals  exercised 3 

Military  law: 

1 2(rf) 

Persons  subject  to 4 

Sources  of -  "!) 

Military  prisoner: 

Exercise  of  clemency  in  case  of 402 

cl  to  military  law 4,13,38,74  fj  ;  A.  W.  2.  L2 

Military  property: 

damage  or  wrongful  disposition  of 281,  433,  p.  344;  A.  W.  83 

Loffl,  waste  or  ■wrongful  disposition  of,  issued  to  soldiers.  281,434,  p.  344;  A.  W.  8 1 
Purchasing  or  receiving  in  pledge 444.  pp.  280, 348;  A.  W.  94 

Military  Bervice: 

tdingto  bring  discredit  upon 446,  pp.  283, 349-852;  A.  W.  96 

nto,  subject  to  military  law 

Military  tribunals: 

Kinds  of 3 

Other  than  courte-martial,  jurisdiction  of 45;  A.  W.  L5 

Military  witnesses: 

Attendance  of,  how  secured L63 

Retired,  attendance  of,  how  secured 163 

Militia,  when  Bubject  to  military  law 4  (a)  n;  9;  A.  \Y.  2 

Minority,  of  deserter,  effect  of 60 

Misappropriation: 

1  lefined P-  279 

Of  military  property 444;  pp.  278,348;  A.  V\"  ill 

Misbehi 

Before  enemy 41,347,  125;  pp.  341  342;  A.  W.  75 

Denned ■.-•-•■  P-225 

Inducing,  before  enemy 425;  A.  W.  75 

Of  sentinel 436;  p.  344;  A.  W.  86 

Miscellaneous  provisions 481  486 

Misrepresentation,  defined P-  197 

Mitigation: 

<  if  punishment,  defined 380 

ntence 381 

le 382 

Modification  of  sentence,  before  publication 387 

M oing  of  muster  roll 407;p.337;A   V      • 

tana,  fee  and  mileage,  civilian  witnesses  in 185  (c) 


INDEX.  463 

[Poforen-es  arc  to  paragraphs,  except  where  pages  are  Indicated  by  t he  letter  "P"  preceding  the  number, 

and  Articles  of  War  are  indicated  by  the  loiters-  A.  W."  preceding  the  number.] 
Motions:  Par. 

Nolle  prosequi,  grounds  for  entering 158  (a-b) 

Nolle  prosequi,  is  a  withdrawal  of  existing  charges  and  not  acquittal  or 

pardon L58 

To  elect,  act  charged  under  two  or  more  tonus 157 

To  sever,  by  one  of  two  or  more  joint  accused L56 

Motive,  evidence  of 206 

Murder 35,40,346,378,  142;  p.  346;  A.  \V.  92 

Assault  with  intent  to p.  268 

Defined p.  249 

Puniahment  for 40  n;  A .  \Y.  92 

Trial  for,  not  barred  by  statutes  of  limitations 149 

Muster: 

Defined p.  198 

False 281,  320,  378,  407;  p.  337;  A.  W.  56 

Muster  in,  unlawful 406;  A.  W.  55 

Mutiny 41,338,378,417;  p.  340;  A.  W.  66 

Attempt  to  create 417;  A.  W.  66 

Defined ...  p.  213 

Failure  to  give  information  of 418;  A.  W.  67 

failure  to  suppress 41,  378,  418;  p.  340;  A.  W.  67 

Trial  for,  not  barred  by  statutes  of  limitations 149 

Name: 

How  pleaded 74  (h-i) 

How  pleaded,  where  accused  known  by  more  than  one  name 74  (h-i) 

National  Guard: 

Courts-martial  system  for,  not  in  Federal  service pp.  331-332 

Subject  to  military  law 4,9-13,38,74  (j);  A.  W.  2 

When  subject  to  laws,  etc.,  governing  Regular  Army 4  («)  n 

National  Guard  Reserve,  when  subject  to  laws  applicable  to  volunteers.  ...  4  (a)  n 

Navy,  when  medical  officers  of,  subject  to  articles  of  war 4  (ft7) 

Neglect  of  duty,  prejudicial  to  good  order  and  military  discipline. . .  35,  71,  74  (e),  90, 

173, 231, 235,  286,  294n, 300,  415,  420,  423, 
446,  460;  pp.  336,  349-352A;  A.  W.  96 

Neglect  to  secure  captured  public  property 429;  A.  W.  79 

Nevada,  fees  and  mileage,  civilian  witnesses  in 185  (c) 

New  Mexico,  fees  and  mileage,  civilian  witnesses  in 185  (c) 

Nolle  prosequi: 

t  of 158 

Grounds  for 158  (a-b) 

mmissioned  offi<  er: 

[ncluded  in  term  soldier  in  A.  W.  1 4  n 

lui  !  toward 416;  A.  \\  .  65 

Nol  triable  by  summary  court,  unless  he  consents 43 

Punishable  by  reprimand 318 

Punishment  of 349,  p.  167 

ace  of,  to  reduction 327 

Status  of,  in  arrest 53 

Notary  public,  general  powers  of,  grant  to  certain  Army  officers  in  foreign 

places  where  \v.:>-   is  serving 138  (6);  A.  W  .  114 

53915°— IS  ■ 


464  INDEX. 

[Roferc.  '  nl  by  the  letter  "P"  p  ml>er, 

•    re  indicated  bj  the  letters  "A.  W7' preceding  the  number.] 

Par. 

Atruiiiau.ii.  form  oi 132  (o,  6) 

Authority  to  administer t38;  A.W.  III 

i  lert  of  department  investigating  fraud.-,  administration  of 138(a) 

ji,  observed  during  administration  of,  to  members,  judge  ad- 

tte,  etc sl>-  ' 

Defined !'  -,,;' 

•  section  with  claims 444;  p.  277;  A    W.  94 

For  administrative  purposes,  who  may  administer 

form  of ]'M>'-  A-  ^  ■  l!) 

■,  of  frauds,  etc.,  who  riiay  administer 138  (a) 

Judge  advocate,  form  of 

Military  administration,  officers  authorized  to  administer  for  purposi 

A.  W.  Ill 

:e,  officers  authorized  to  administer  for  purposes  of 138  (ft); 

A.  W.  114 

Ofenliatmenl 282;  A.  W.  109 

rpreter,  court  <>f  inquiry 466 

Of  jud  ■  additional  ceremony  to  bind  conscience  of 

Of  members  of  courts-martial, additional  ceremony  to  hind  conscienceof. 

Of  members  of  courts-martial,  administration  of  by  judge  advocate 91, 

L32   L36;  A.  \\  .  19 

of  courts-martial,  form  of 132  (a);  A.W.  19 

Of  membersof  courts-martial  no1  findings,  sentence,  votes  and 

opinions  of  members 91;  A.  W.  19 

abersofcourts-martial'to  be  administered  anew  in  each  case.  132(c);  A.W  .  19 

Of  members  of  courts-martial  to  tef  ■  form 

(  u'  members  of  courts  of  inquiry,  administration  of,  by  recorder. .  -1W3;  A.  \V.  loo 

in  reporter  of  court  of  inquiry _ •--■      466 

of  v  itnesses  in  court-martial,  additional  ceremony  to  hind  conscienceof.. 

Of  witnesses  of,  in  court  of  inquiry - ll") 

r  of  department  investigating  frauds,  etc.,  administration  of 138(a) 

rmof 135(»);  A-W-  l9 

Witnesses,  by  whom  administered  in  certain  cases 134(6) 

Witnesses    form  of 134(a);  A.W.  Lfl 

Offenders,  delivery  of,  to  civil  authorities 424;  A.  W.  i  I 

<  >  n't  •  i : 

\Uo  Sentences,  power  to  confirm  part  of  finding. 

Againsl  specific  articles  of  war  should  be  so  charged 7 1  i< ) 

Approval  of  thai  part  of  finding  of  particular  offense 377  (a) 

Committed  after  arrest  or  confinement  on  original  charges,  how  charged. .        73 
Committed  in  past  and  doI  specified  in  original  charges,  how  charged.  ...        73 

included  offense 

Lesser  included  ofl  to<  onfirm :',!l 

Requisites  of  proof  of  ""* 

Scandalous  and  di  graceful,  bow  (.leaded 

Trial. I.-  h     ■■en.-ral  r,.urt -mart  ial 39,40 

Triable  by  special  courts-martial 41 

Triable  by  summary  court I:;  '-' 

ral  article '  "i;  A  u    'i,; 

Officer: 

Commanding  for  the  time  being,  approval  of  sentence  by 374 

Commanding  for  the  time  being,  defined 3'4 


ixdex.  465 

[References  Me  M  paragraphs,  except  where  page  •  are  indicated  by  'lie  loiter "  P  "  preceding  I  ho  number, 

and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Officer — Continued.  i':r 

Gonducl  unbecoming..  40n, 71, 300, 308  309,312,378,  145;  pp.  348-349;  A.  W.  95 
Court  of  inquiry  record  admissible  as  evidence  for,  in  case  extending  to 

dismissal  of 27 J;  A.  W.  27 

Defined 4  n,  8;  A.  W.  1 

Disciplinary  punishments,  liability  to '. 336 

Dismissal  of,  for  cowardice  or  fraud 347 

Disrespect,  toward  Federal  or  State  officials 413 

Drafted,  eligible  for  memberships  on  court-man  ial 9  (c) 

Drunk  on  duty 435;  A.  W.  85 

False  muster  by p.  199 

Found  drunk  on  duty 435  •  A .  W.  85 

How  placed  in  arrest 48 

May  p  - 03 

Medical,  communication  from,  not  privileged 231 

No1  to  beplai   din  arrest  for  light  offense 50 

Not  triable  by  court-martial   appointed  by  Superintendent  of   Military 

Academy 14 

Not  triable  by  special  court-martial 41 

Nol  t  riable  by  summary  court 43 

Power  to  order  into  arrest 47 

Procedure  for  arrest  of,  without  preferring  (barges 50 

Punishment  by  reprimand 318 

Retired,  active  duty  in  time  of  war 453 

Retired,  assignment  upon  courts  of  imp  dry ! :,:•; 

Retired,  subject  to  military  law •!,!).!:  A .  W.  2 

Retired,  when  eligible  for  membership  on  court-martial 9  {b) 

Right  of  dismissed  officer  to  trial  by  court-inartial J5n.  :;^   b) 

Sentences  of 310 

Stat  us  of,  in  arrest 19 

fcoxy  rules  of  evidence,  as  to  desertion 284  (a) ;  A .  W.  28 

Triable  by  general  courts-martial  only 12;  A.  W.  16 

Trial  of,  by  inferiors  in  rank  not  usually  permitted 12  («>;  A.  \Y.  lb' 

Unlawful  enlistment  by 406;  A.  W.  7,5 

Unlawful  muster  in  by - 406;  A.  W.  55 

When  arrest  or  confinement  authorized 46  (a);  A.  W.  69 

Who  may  arrest 47;  A.  YY.  68 

Witness  fees  and  mileage 183 

Officers'  Reserve  Corps: 

When  n  aer  e  officers  are  eligible  for  membership  on  court-martial 9  (c) 

\\  hen  subject  to  laws,  etc.,  governing  Army 

Official  documents,  foundation  for  introduction  of 237 

Omission: 

In  record  of  general  court-martial,  correction  of 

In  record  of  special  court-martial,  collection  of 

In  record  of  summary  court-martial,  return  to  court 

Open  session,  advice  of  judge  advocate  i"  he  obtained  in 99,  101 

Operation,  refusal  to  submit  to 

Opinion  e\  Ld<  ace: 

As  to  drunkenness 287 

When  admissible 218 

Oral  statements,  how  pleaded 74  {I) 


4  C,G  INDEX. 

IRcforencos  are  to  paragraphs,  except  where  paces  are  indicated  by  the  letter  "P"  preceding  the  number, 
■  '  \\  or  are  Indicated  bj  the  letters  "A.  w."  preceding  the  number.] 

,  ■  Par. 

Court-martial,  form  of P-  '■'•~iJ 

Court-martial,  information  contained  in '100 

[nto  arrei  I  and  confinement,  disobedience  of ]»■  -17 

ii.  when  it  may  be  vacated 393 

pensions  bj  n  vi<  wing  authority p.  373 

ind  mileage,  civilian  witnesses  in 185  (c) 

Papers,  <  i\  ilian  witness,  procedure  to  obtain 166 

Pardon: 

Denned 150 

K\  idence  to  support  plea  of,  in  bar  of  trial -■ :; 

to  mitigate  or  remil  sentences 380  385,390,  102  103;  A.  W.  50 

of LS0 

Parents,  right    of  parents  of  minor  deserters 60 

Parole: 

Defined ••—  P- 23° 

(  lr  countersign,  making  known 427;  A.  \\  .  77 

Pay: 

Courts-martial  withoul  power  to  order  assignment  of 325,  329 

3-martial  without  power  to  stop,  in  favor  of  government  or  individual.  3 

Detention  of ^ 

:'■;.. ii ,.;'.  punishment  by 328 

Extra  for  clerical  duties,  when  forbidden 118 

Forfeiture  of 124,343 

Stoppage  of,  when  unauthorized 325,  329 

Penal  I  bast,  punishment  for 338 

Application  for  clemency  by  prisoner  confined  in 402 

Confii at  in * 337-339,341,396  399;  A.  W.  42 

tion  of  sentences  in 338 

.  commission  of 35.  149,443,  p.  346;A.W.93 

iniflhable  by  confinement  in 338 

Senten  ority  for,  to  be  shown  in  record 339 

Perjury: 

Commission  of 35, 149, 443,  p.  346;  A.  W.  93 

Corrobor  itive  ■    Ldence  required 248 

Defined P- 264 

Numbi  r  of  w  Ltnesses  required  to  sustain  conviction  of 248 

Trial  for,  statutes  of  limitations I49 

Compulsory  examination  of,  not  self-crimi nation 236 

Injury  to,  redr<    -  for 481 

p.      1    1  in  mmanding  officer,  in  sale  of  provisions 437;  A.  W.  87 

form  of  voucher  for  payment  to  reporter p.  405 

1  military  law 4,9  10,  13,38,74  fj);  A.  W.  2 

Pi  therto  desert 4I° 

p(      i0n  r  Eor  writ  of  habea  1  corpus.    S«  Habeas  corpus. 

juriee   deliberationffof.    See  Privileged  communications. 
Philippine  I 

civilian  witnesses  in 165  (c)  n 

Habeas  1  ra  pus,  issuance  of  writ  of,  in _ !su  u 

Return  by  commanding  general  to  writ  of  habeas  corpus,  when  conclusive.  -  480  n 


INDEX.  467 

[References  are  to  paragraphs,  except  where  pages  are  Indicated  by  the  letter  "P"  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  \V."  preceding  the  number.) 

Philippine  Islands— Continued.  Par. 

Trial  iii  either  military  or  civil  courts  in,  is  bar  to  trial  in  other  tor  .same 

acts 1-19  (3(7) 

Witnesses,  punishment  for  refusal  to  appear  or  testify 1 7  L 

Photographs,  as  evidence 245 

Physicial  examination;  requiring  accused  to  submit  to  is  not  self-incrimination.       236 

Physicians,  civilian  and  military,  communications  between  patients  and,  not 
privilege  d 231,  232 

Tillage,  quitting  post  to 425;  p.  228;  A.  W.75 

Place: 

Of  meeting  of  courts-martial,  how  determined 81 

Plea: 

Of  guilty  by  accused  before  summary  court,  effect  of 351  (d) 

Pleading: 

A  lias 74  (i) 

Allegations  of  time  and  place 

Alternative,  forbidden 74  (c) 

(  hange  of  rank 74  (k) 

Description  of  accused 74  (b) 

Desertion  followed  by  fraudulent  enlistment 74  (n) 

Disgraceful  offenses 71  (to) 

Evidence  not  advisable 74  (d) 

Fraudulent  enlistment  by  deserter 74  (n) 

General  issue,  accused  must  plead  on  overruling  special  plea 153  (d) 

General  issue,  change  of  plea  under 154  (b) 

General    issue,   insanity  at    time    offenses  were    committed  .is    defense 

under 154 

.  I  issue  substitution  of  special  plea  for 154  (b) 

General  issue,  usual  form  of  plea 154  (a) 

General  prisoner 74  (j) 

In  words  of  statute 74  (p) 

Larceny  and  sale  of  public  property 74  (o) 

Name  of  accused 74  (h,  i) 

Necessity  of  all*  ging  intent 2S1 

ainst  specific  articles  of  war 74  (e) 

Oral  statements 74  (I) 

Place 74  (g) 

Plea  of  guilty,  accused  to  be  advised  of  elements  constituting  offense 154  (d) 

PL  a  of  J  uilty,  accused  to  be  advised  of  maximum  punishment  for  offense.  154  (d) 

Plea  of  guil  I  by  statement  of  accused  inconsistent  with 154  (e) 

Plea  of  guilty  not  to  exclude  taking  of  evidence 154  (c) 

Plea  of  guilty,  record  must  show  explanation  by  president  of  elements  of 

offense  and  maximum  punishment,  and  reply  of  accused  thereto 154  (d) 

Plea  of  guilty  without  criminality  is  irregular,  etc 154  (/) 

Refusal  of  accused  to  plead 144-1  15;  A.  W.  21 

Refusal  to i  plead,  action 155 

];.  quisites  of  charge  and  specifications  against  a  general  prisoner '<  '     > 

Requisites  of  proper  charge  and  specification 74 

Sale  of  Btol<  n  public  property 74  (o) 

74  (to) 

Time 74(g) 

Written  instrument 74  (I) 


468  ini'Kx. 

QMmNHn  adlcated  by  the  letter  "P"  preccdtotgtha  number, 

.    i  In-  ininil.«T. ] 

•uili\ ,  procedure'dn '  '' 

IS 

perty  in 444;  ]>.  280;  A.  W.  !» 1 

Plunder,  quit  W.  75 

o  punishments 84J 

Porto  ' 

.  i\  ilian  witnesses  in L85    a) 

Trial  in  either  military  or  civil  courts  in,  is  bar  to  trial  in  other  for  same 

arts J 

Poet: 

Confinement  to  limits  of :;',;) 

Quitting,  to  plunder  or  pillage 425;  p.  228;  A.  W.  75 

Sentinel  drunk  on 436;  A.  W.  86 

relieved 438;  A.  W.  86 

Si  ntinel  Bleeping  on 436;  A.  W.  86 

Presidential  pardon.    See  Pardon. 
President: 

tins  title,  Courts-martial  (general    and  special);  Courts  of  inquiry; 
Military  boards. 

<  »i  court-martial,  etc.,  duties,  powers,  and  rights  of 89 

trt-martial,  etc.,  may  appoint  into  rpreter 119 

■  n-iuanial,  etc.,  1"  tppoii  t  reporter 112 

court-martial,  to  authenti  p.  356 

denl  of  United  States: 

Authority  to  appoint  general  court-martial M 

mptuoue  oi  disrespectfu]  words  concerning 413;  p.  339;  A.  \\ .  62 

.    ,.,  |,t  classes  oi  persons  Erom  trial  by  summary  court 43;  A.  W.  11 

be  modes  of  proof  for  courts-martial,  etc 198;  A.  W.  38 

May  prescribe  procedure  for  I  ourts-martial,  etc  198;  A.  W.  38 

iption  of  fa*  t,  defined 

tption  of  law,  defined 277 

I  in  connection  with  crime 280 

of 276 

Of  desertion,  from  absence  without  leave 284 

efined p.  208 

I'm    ious  con  ■  iction: 

i •  ■' ' ' 

Defined 307 

Effect  on  question  of  guilt  of  particular  charge 307 

:  upon  dishonorable  discharge 349;  p.  L68 

nee  of 349;  P.-  l68 

re  summary  court :;:'1    0 

ace  of,  when  and  how  used :  - .      306 



306,  307 

Prima  facie  evidence,  defined  ~'1' 

Prior  offenses,  subjecl  to  pre^  ious  laws 487 

■  r: 

Absence  of,  effei  t  of  on  date  of  beginning  sentence  of  confinem<  at 401 

Change  of  place  of  confinement  of 389 


INDEX.  469 

[References  are  to  paragraphs,  except  where  pases  arc  LndJ  sated  by  the  letter  "P"  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "  A.  W."  preceding  the  number.] 

Prisoner— Continued.  Par. 

es  against,  investigation  of 54,77,80;  A.  W.  70 

eonfinement  of  accused 46-57,420;  p.  340;  A.  \Y.  09 

I  tefined pp:  219-221 

Escape  of,  through  design  or  neglect pp.  222,  223 

Form  of  return  to  writ  of  habeas  corpus  for pp. 

Persons  under  sentence  adjudged  by  court-martial  subject  to  Articles  of 

War 4,  9-10, 13,  38;  74 (j);  A.  W. 2 

Refusal  of  commander  of  guard  to  receive 55,  421;  p.  341n;  A.  W.  7L 

Refusal  to  receive  and  keep,  how  punished 55,  421 ;  A.  W.  71 

Release  of,  without  proper  authority 57,423;  A.  W.  73 

Report  as  to  prisoners  received,  by  commander  of  guard. . .  55  n,  422;   A.  W.  72 

Report  of,  by  commander  of  guard 55  n,  422;  p.  341 ;  A.  W.  72 

Return  by  commanding  general  to  writ  of  habeas  corpus  issued  in  Philip- 
pine Islands 480 

Sentenced  to  confinement  in  penitentiary,  application  for  clemency  in 

case  of 402 

Buffering  prisoners  to  escape,  punishment  for 57;  A.  W.  73 

Unauthorized  release  of 423;  A.  W.  73. 

When  may  be  placed  in  irons p.  56 

When  to  be  shackled  or  handcuffed 56 

Prisoners,  segregation  of 341 

Prison  discipline,  means  of  enforcing >45 

Prisoner  of  war,  return  by  commanding  general  to  writ  of  habeas  corpus  issued 
in  Philippine  Islands 480 

Private  claims,  against  officers  and  soldiers,  when  matter  for  discipline 71 

Privileged  communications.     See  Evidence. 

Proceedings: 

Action  on 369-400 

Publication  of,  of  court  of  inquiry 472 

Record  of  general  court-martial 357 

Record  of  must  be  complete  in  each  case  arraigned 143 

Procedure: 

As  to  previous  convictions 306-307 

Of  courts  of  inquiry '• p.  290 

<  If  courl  3  of  inquiry  with  reduced  number  of  members 465 

Of  general  courts-martial.     (See  Courts-martial;  Courts-martial  (general), 
etc. 

Of  special  courts-martial 350 

Of  summary  courts-martial 35 1 

On  revision,  by  general  court-martial 352 

On  revision,  by  special  court-martial 352 

On  revision,  by  summary  court-martial 353 

Process 

'I-,,  be  produced  with  return  of  writ  of  habeas  corpus  issued  by  State  court 

to  issue  to  obtain  witnesses 159-169,172;  pp.  383  390;  A.W.l'J 

Prohibited,  punishments 344  3  15 

Promotion: 

Of  I  lember  of  court-martial  during  trial,  effect  of 93 

Soldier  holding  certificate  of  eligibility  to,  not  triable  by  summary  court- 
martial  43 

Promulgation  of  sentence,  action  after 401-404 


470  iNPi.x. 

meferei  '■'  totter  "P"  preceding  the  number, 

and  Articles  ol  War  are  Ladl<  i  mber.] 

I 

Sa  I'.'  Ldence.  Par. 

■  nee  without  leave P-  205 

ising  another  to  desert P  203 

; .,;  con  piracy  to  defraud  United  States  through  false  claims.. .  p.  275 
D PP-  254  255 

■  ilt PP-  284-285 

.ill  and  battery P-  284-285 

mltingnonc  ed  officer P-  212 

mlting  or  willfully  disobeying  superior  officer pp.  20  •  210 

aultwithinl  ater p.271 

Of  assaull  with  intent  to  commil  rape p.  271 

ii  Bodomy p.  272 

Of  assaull  with  intenl  to  do  bodily  harm p.  272 

Of  assaull  with  intent  to  murder p.  271 

ih  v.  iili  intent  to  rob P-  272 

jting  another  to  deserl P-  203 

Ofatte)  create  a  mutiny p.213 

Of  attempting  to  deserl p.  202 

Of  attempt  to  cr<  ate  Bedition P  213 

Of  beginning  or  joining  in  a  mutiny p.  214 

Of  being  a  spy P  -■''' 

Of  being  found  drunk  on  duty p.  241 

Of  breach  of  arrest p.  218 

Of  burg  lary P-  256 

Of  castinj  away  arms  or  ammunition P-  228 

Of  causing  or  exciting  a  mutiny p.  214 

Of  commanding  officer  being  interested  in  the  sale  of  victuals,  etc.,  in  fort, 

camp,  i  tc p.  244 

Of  commission  of  waste  or  spoil P-  -  '•"> 

Of  committing  depredation  or  riot p.  246 

Of  conduct  of  nature  to  bring  discredit  upon  the  milita  -  p.283 

<  if  conduct  unbecoming  an  officer  ami  gentleman p.  281 

of  crimee  or  offenses  not  capital  under  general  article  (A.  W.  96).  .  .  pp   I 

<  if  dealing  in  captured  or  abandoned  property p.  233 

of  delivery  of  a  less  amount  than  that  called  for  by  receipt p.  278 

Of  depredation  or  riot p.  246 

ertion PP-20]  202 

Of  disobedience  of  order  into  arrest  or  confinement p.  217 

Of  disorders  and  negl<  cts  to  the  prejudice  of  good  ordei  and  military  dis- 
cipline   P-282 

ml  behavior  toward  superior  officer !'•  208 

Of  disrespect  toward  Federal  or  State  officials 413 

Of  dueling  or  aiding  in p.  247 

Of  embezzlement I'  -,,,! 

Of  embezzlement,  larceny,  misappropriation,  sale,  ,  rop- 

P-279 

I  P-  204 

mfinement p.  219 

;  ■  r  through  design P-  223 

aer  through  neglect P-  222 

( )f  excit  in'.-  a  mutiny P-  214 

<  >f  fail  nr delay  in  repoi  tin-  receipt  of  captured  or  abandoned  property.,  p.  233 


INDEX.  471 

[Reference  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "P"  preceding  the  number, 
and  drticles  of  War  are  indicated  bj  theletten  "A.  \\V"  preceding  the  number.) 

Proof— Continued.  Par. 

Of  failure  to  give  information  of  mutiny  or  sedition p.  216 

Of  failure  to  report  prisoners  received p  220 

Of  failure  to  suppress  mutiny  or  sedition p.  215 

Of  Ealse  oath  in  connection  with  claims P-  277 

<  >i  false  muster  by  officer P- 199 

Of  false  or  fraudulent  claim  against  the  Government p.  274 

Of  forcing  a  safeguard p.  231 

Of  forgery P-  286 

Of  forgery  of  signature  in  connection  with  claims p.  277 

Of  frauds  against  the  Government pp.  273-280 

Of  fraudulent  enlistment - p.  197 

Of  good  character,  etc.,  before  summary  court 351  (e) 

Of  giving  intelligence  to  the  enemy p.  235 

Of  giving  parole  or  countersign  different  from  that  received p.  230 

Of  harboring  or  protecting  the  enemy p.  234 

Of  holding  correspondence  with  the  enemy p.  235 

Of  improper  use  of  countersign p.  230 

Of  inducing  abandonment  or  delivery  up  of  command p.  227 

Of  inducing  misbehavior  before  the  enemy p.  227 

( )t  insubordinate  conduct  toward  noncommissioned  officer p.  211 

Of  intimidation,  etc.,  of  persons  bringing  provisions  to  camp,  etc p.  2-14 

Of  joining  in  a  mutiny p.  21 4 

Of  larceny pp.  257-262 

Of  laying  of  duty  or  imposition  by  commanding  officer  upon  the  bringing  of 

\  ictuals,  etc.,  into  fort,  camp,  etc p.  2  13 

Of  making,  etc.,  false  writings  or  other  papers  in  connection  with  claims. .  p.  276 

Of  making  known  parole  or  countersign p.  230 

Of  making  or  delivering  receipt  without  having  knowledge  that  it  is  true . .  p.  2  78 

Of  manslaughter P-  -  54 

Of  mayhem p.  254 

Of  misbehavior  before  enemy p.  226 

Of  misbehavior  of  sentinel p.  242 

<  tf  murder P-  251 

Of  mutiny - P-  213 

Of  neglect  to  secure  captured  public  property  for  public  sen-ice p  232 

Of  occasioning  false  alarms p.  228 

Of  offense  undergeneral  article  (A.  W.  96) pp.  - 

Of  perjury pp.  264-266 

Of  personal  interest  of  commanding  officer  in  sale  of  provisions p.  243 

Of  persuading  another  to  desert p  203 

Of  |                    t  causing  to  be  presented  for  approval  or  payment  a  false  or 
fraudulent  claim 

<  >i  previous  convictions 

Of  purchase  or  receipt  oi  military  prop  cty  in  pledge p.  280 

Of  quarrel,  fray,  or  disorder p.  217 

Of  (putting  post  to  plunder  or  pillage 

pe pp.  251-252 

Of  receiving  in  pledge  military  property p.  -'M> 

Of  refusal  or  omission  by  commanding  officer  to  see  reparation  made  for1 

damage  done  to  property  by  person!  in  military  sen  ice p.  246 

Of  refusal  to  aid  civil  authorities  La  apprehending  accua  d  person p.  224 

Of  refusal  to  deliver  accused  persons  to  civil  authorities p.  224 


-172  IN.'KX. 

IRpfomnrps  nrp  lo  pnrofmphs,  exrvpt  when  pagse  an  Indicated  in  ih.>  totter  "  P"  preeediag  Uie  number, 
re  indicated  bj  thelettere"A.  w .    preceding  the  number.) 

Proof— Continued.  Par. 

Of  refusal  to  receive  and  keep  prisoners p.  220 

( >f  releasing  prisoner  wil  a  ithority p.  222 

Of  relies  ing  or  aiding  enemy p  ""  ! 

ter  by  officer p.  204 

■  ox  depredation p.  246 

pp. 

oi  military  property p.  239 

'.  -  p.  2 !  3 

■  i,..  I  being  bund  drunk  on  posl -  --  p.  242 

itinel  being  found  sleeping  on  post p.  242 

I        atinel  lea\  ing  posl  before  being  relieved p.  242 

unefully  abandoning  rnrnmarwl p.  227 

Of  shamefullj  delivering  up  a  command  to  the  eaemj p.  226 

Of  striking  noncon  fficar p.  212 

Of  striking  superior  officer p.  209 

Of  subordinates  compelling  commander  to  surrender  or  abandon  command,  p.  220 
Of  suffering  loss,  spoliation,  damage,  or  wrongful  disposition  of  military 

propert y '-  -  -  -   p.  237 

Of  threatening,  drawing  weapon  upon,  or  offering  violence  to  oilicer  or 

aoni  i  officer  ordering  person,  into  arresl  or  confinement p.  217 

Of  unlawful  enlistmenl  by  officer p.  198 

Of  unlawful  muster-in  by  officer p.  198 

(M  using  provoking  or  reproachful  speeches  or  gestures p.  247 

Of  willfully  destroying  property p.  246 

Of  willfully  disobej  ing  superior  oilicer p.  210 

Of  wilful  or  negligent  injury  to,  or  loss  of,  military  property p.  239 

Of  wrongful  appropriation  of  captured  public  property p.  232 

Property: 

ublic  property  taken  from  enemy 429;  pp.  342-343;  A.  W.  70 

Dealing  in  captured  or  abandoned 430;  A..  W.  80 

Failin  captured  public  property 429;  A.  W.  70 

Injury  to,  redress  Eor 481 

Misappropriating  captured  public  properly 479;  A.  W.  70 

Public  nred,  to  be  secured  for  public  service 429;  A.  W.  70 

Unlawful  taking  |  larceny  I  of pp.  267  262 

Waste  or  unlawful  disposition  of  military  property  issued  to  soldiers 7!  (c), 

281,299,  134;  p.  344;  A.  W.  si 

Willful  destruction  of,  by  persons  subject  to  military  law 439;  A.  W.  89 

i  or  negligeni  lossol 281,  133;  p. 344;  A. W.  83 

Mini!,  members  of  court-martial  as  witnesses  for 120.  131  (a) 

i  tor: 

Defined 17,22 

May  doI  appoinl  general  or  Bpecial  court-martial  to  try  accused 14,21 

one: 

[ntimid  ition,  etc.,  of  persons  bringing,  to  camp,  etc 438;  A.  W.  88 

Sale  of,  persona]  interesl  of  commanding  officer  in 437;  A.  W.  87 

iking  speed  aed p. '_•  17;  A.  W.  90 

Provosl  court,  concurrenl  jurisdiction  with  court-martial 2  3,45;  A.  W.  L6 

motions  of 3  (a) 

Provo     mi;  bal: 

Duty  ad  keep  prisoners 55;A.W.71 

Refusal  to  receh  e  and  keep  prisoners 421;  A.  W.  71 


INDEX.  473 

[References  are  to  para.sraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  the  number; 
and  Articles  of  War  are  indicated  by  th<>  letters  "A.  w."  preceding  the  number.) 

Par. 

Public  trial,  when  proper 92 

Publication: 

Of  court-martial  orders 100 

missal  of  officer  foT  cowardice  or  fraud 347;  A.  W.  44 

Of  proceedings  of  court  of  inquiry 472 

Of  sentence,  effect  of 387 

Of  sentence,  power  of  reviewing  officer  to  modify  before 387 

Punishment: 

Adaptation  of,  to  best  interests  of  service 342 

By  branding,  prohibited 344 

By  confinement  at  hard  labor 322,  343 

By  confinement  in  a  penitentiary 337  -339 

By  confinement  to  limits  of  post  or  reservation 319 

By  confinement,  when  lawful 337-339,  34  1 .  396-  399 :   A .  W.  42 

By  death 303 

By  detention  of  pay 328,  343 

By  disciplinary  power  333-336 

By  dishonorable  discharge 343 

By  dismissal 308.  312 

By  fine,  distinguished  from  forfeiture 317 

.  By  flogging,  prohibited 344 

By  forfeiture  of  pay 343 

By  hard  labor  without  confinement 323 

1  ty  marking,  prohibited : 344 

iprimand 318 

By  tattooing,  prohibited 344 

( bwardice  or  fraud 347;  A.  W.  44 

3  of 343 

Confinement  without  hard  labor  not  to  be  imposed 311  n 

Death  penalty,  when  authorized 346 

Death  sentence,  when  lawful 40-41.  90,295,  308,  34G,  378.  391;  A.  W.  93 

Discretionary 309 

Dishonorable  discharge 320 

Dishonorable  discharge,  suspension  of  sentence 321 

Effect  of  previous  convictions  on '. 307 

Equivalents,  table  of 349;  p.  L67 

Executive  order,  articles  5  and  8  in  force  during  time  of  war     (Ops.  J.  A.  G. 

20,  1918.) 349 

Executive  order,  not  in  force  during  time  of  war  except  articles  5  and  8. 

(Ops.  J.  A..  G.  250.4;  Feb.  20,  1918) 349 

Executive  order  prescribing  maximum  limits  of  punishment 349 

For  contempt  by  court  of  inquiry 460 

For  cowardice 347 

For  desertion 340 

Forfeiture  distinguished  from  fine :;|7 

Forfeiture  of  pay  and  allowances 324 

Forfeiture  of  pay  by  soldier  docs  nol  include  Class  A  allotment  under  War 
"Risk  I :  :t  and  whenever  practicable  should  ool  include  CI 

allotment :;'l 

For  felonies :;:;7    ;:;s 

For  fraud 

For  offences  committed  before  Articles  of  War  became  effective 4b7 


4  74  IN; 

n  indli  ated  by  the  letter  "  P"  preceding  the  number, 
and  Arti  ilee  ol  War  arc  indicated  i>>  the  letters  •■  \.  w '.■■  preceding  toe  number.) 

Punishmenl     Continued.  i';'r- 

ral  Limitations  upon  maximum 349;  P-  |li7 

.when 309 

d  by  genera]  court-martial 40 

I  courts-martial 42 

imposed  by  summary  courts-martial 44;  A.  V. .  it 

.■,1  upon  finding  of  guilty  of  several  charges,  charging  sam fense..        66 

I  ;,,,;,,   0f 40,  12,  1 1.  306  307,  309-328,  330-:;:'.::.:'.  10- 

349, 400;  pp.  369  370,375  377;  A..  \ 
I  pay.  paymenl  of  reward,  for  return  of  soldier  absenl  without  leave.      329 
' 313 


Mandatory . 


309 


Maximum,  adniinistrative  rules  under  Executive  order  prescribing..  349;  p.  169 

Maximum,  ae  a  Eactor  in  determining  proper  court-martial  for  trial 78 

Maximum,  equivalents  of 349 

Maximum  limit  of,  for  noncommissioned  officers 349;  ]>.  Ki7 

Maximum  limits 309,348 

Mitigation  of,  defined 3S0 

Mitigation  i  f,  extends  to  unexecuted  portions  of  sentence  only 402 

ts-martial  for  inattention  to  dutj 86 

Of  Qoncommissioned  officers 349;  P- 167 

'  kinds  of 310 

Of  soldiers,  various  kinds  of 311 

Lnsl  military  law 4(M2, 44, 90, 295, 306-328, 330  333, 

337  349,378,391,396  399,  100;  pp.  <  377;  A.  W.  -11  45 

Office  by  confinement  in  penitentiary 338 

of  War  I  >epartment  regarding 340  343 

IV    Lous  convicti  us,  effeel  upon  punishment 349;  p.  168 

Prison  discipline 345 

Prohibited  by  custom  and  regulation ■"''•, 

Prohibited  bj  statute 344 

Prohibition  of  certain  kinds  of 344  345;  A.  W.  41 

Reduction  in  rank 343 

Reduction  of  non<  ommissioned  officers •'-' 

Relativ  of 

Remission  of  extends  to  unexecuted  portions  of  sentence  only 402 

ration  of  prisoners >  "■ 

general  prisoners -      330 

mc  immand 314,315 

Suspension  from  duty 316 

ion  Eromrani 314 

Punitive  articles PP-  '"';  286 

Pure!  i!l;  P'  28°i  A-  Wl  !M 

',  defined P-  216 

Quarrels  power  of  officers  and  uoncommis  ioned  officers  to  stop -17, 

52,  11!';  p.  340;  \.  W.  68 

Quartermaster  Co]  p 

Field  derki .  subjeel  to  Articles  of  War _ 4(A) 

,1  Unit,  nanl  in,  not  usuallj  detailed  as  member  of  court-martial 6 

Quittingguard   66,149,281,283  284,  112;  p.  339;  A.  W.  61 

Quitting  posl  l"  ] 'I under  or  pillage 425;  p.  228;  A.  W.  75 


•    *  INDEX.  475 

[References are  lo  paragraphs,  except  where  i  the  letter  "P"  preceding  the  number, 

and  Articles  of  War  are  indicated  by  the  tetters  "  A.  w."  preceding  the  number.] 
Hank:  Par. 

Change  in,  how  pleaded 74  (ife) 

Determined  by  rules  laid  down  in  (A.  W.  L19) L2(6);  A.  \V.  II!) 

Loss  of,  by  sentence 313 

Of  appointing  authority  of  general  court-martial 19 

Pi'  appointing  authority  of  special  court  martial 23 

Of  members  of  court  determines  Beating 83 

Of  members  of  court  of  inquiry 456 

Of  narrator  does  not  make  hearsay  statements  admissible 221 

Precedence  among  regulars,  militia,  and  volunteers 10-12;  A.  \Y.  119 

Reduction  in 313 

Rules  of  evidence  to  be  applied  to  witness  irrespective  of 200 

Suspension  from,  effect  of 314 

Rape 35, 40n,  346,  378, 442;  p.  346;  A.  W.  92 

Assault  with  intent  to  commit p.  270 

Commission  of  crime 4 12;  A.  W.  92 

Defined p.  251 

Punishment  for 40  (n) ;  A.  W.  92 

Real  evidence,  exhibition  of  body  of  accused 236 

Reasonable  doubt: 

Conviction  of  accused ,  facts  must  warrant  guilt  beyond 296 

Defined 288 

Effect  of  prima  facie  evidence  in  removing 279 

Receipt: 

Delivery  of  less  than  amount  called  for  by 44 4;  p.  277;  A.  W.  94 

Making  or  delivering,  without  knowledge  that  it  is  true. .  .   444;  p.  278;  A.  YV.  94 

Recollection,  refreshing,  by  memoranda 241,243 

Recommendation: 

For  clemency  by  court-martial  or  member  thereof 332 

For  suspension  of  dishonorable  discharge 321 

Record : 

1  binding  of 362 

By  trial  judge  advocate  of  detailed  \^<-i^  of  case pp. 

it  ion  of  by  appointing  authority 367 

Disposition  of  by  trial  judge  advocate 366 

( If  action  by  appointing  authority 370 

Of  court-martial  as  to  absence  of  member 85 

Of  court-martial,  authentication  of 95 

Of  court-martial,  direct  examination,  how  recorded 250 

Of  court-martial,  disposition  of 

Of  court-martial,  effect  of  irregularities :'  !. 

74(c),  101.  165;  A.  W.  37 

Of  court-martial,  findings  of,  by  reporter 305 

Of  courts-martial,  loss  of  before  reviewing  authority  has  acted  upon 368 

Of  court-martial  on  plea  of  guilty,  requisites  of 154 

Of  court-martial,  questions  and  Lng....       249 

Of  court-martial,  reasons  for  sentence  may  be  spread  upon 331 

Of  court-martial,  revision  of  courts-martial  trials 36  I 

Of  court-martial;  sentence  of,  by  reporter i5 

Of  court-martial,  signature  of  officer  pn  i'<  rring  charges  to  be  copied  into. .        64 
Of  court-martial  to  note  withdrawal  or  absence  of  judge  advocate  or 
assistant  judge  advocate 107 


476  iNM.x. 

,  except  where  p  tedbj  the  letter  "P"  preceding  the  number*  I 

rttcleeol  \\':ir:ire  Indicated  by  the  letters  "JL  W."pr<  umber.] 

I  ontinued.  Par. 

irt-martial,  to  show  introduction  of  depositions 267 

( H  court-martial,  transmission  of,  to  appointing  authority 336 

irl  martial,  typewritten,  of  pro  ime  limit  for  completion  of .       ]IG 

Of  court-maxtial,  typewritten,  of  pr  urniahed 1 1 G 

(  h  court  of  inquiry p.  292 

Of  court  of  inquiry ,  aduussion  175 

Of  court  of  inquiry,  authenticatiori  of 1 7:3 

irt  of  inquiry,  cCispi  474 

( )i'  disciplinary  punishment  awarded  by  commander 334 

Of  former  trial  to  prove  conviction  or  acquittal 274 

leral  court-martial 95, 

lor,  1".  00;  pp.  357  384,375;  A.  W.  33,35 

neraJ  court-martial,  adjournmenl p.  355 

mi-in:irtial,  authentication 354 

<  )i  general  court-martial,  carbon  copies  to  be  prepared 117 

•  I       neral  court-martial,  contents 357 

I  i  ourt-martial,  correction  of 3G4 

Of  general  com  fc-martial,  index  required  357(62) 

Of  genera]  court-martial  on  plea  of  guilty,  requisites  of 154  ((/) 

aeral  court-martial,  party  entitled  to  copy 117,354  357;  A.  W.  1 11 

martial,  preparation  of 355 

Of  genera]  court-martial,  revision  of  proceedings,  form  of pp. 

( >f   i  q(  raJ  court-martial  sentence  to  confinemenl  in  penitentiary .  authority 

appear 339 

Of  general  court-martial  separate  record  for  each  case  tried  before 356 

da  1  a  lurts-man  ial 154  (</) 

ial  court-martial,  brief  of.  required "...      301 

Of  special  court-martial,  correction  <>f 304 

scial  court-martial,  form  and  substance  of 358 

Lai  court-martial,  form  of pp.  965-366 

i.il  court-martial,  index,  not  required 

cial  court-martial,  number  of  copies 359 

Of  summary  courts-martial 

358  363,366  368,  100;  pp.365  367,376  377;  A.  W.  34,36 
( >f  summary  court-martial,  form  and  substance  of 303 

<  if  summary  court,  form  of p.  367 

rt-martial,  return  of.  for  error,  omission,  etc 365 

marj  court-martial,  transmission  of,  to  appointing  authority 

ler: 

court  of  inquiry 4G5 

A <  I  in ini- 1 1  ;ii  i<  .ii  of  oath  by,  court  of  inquiry 466 

A  ppointment  of,  f<>r  court  of  inquiry 454 

its,  Articles  of  War  to  be  read  to 282;  A.  W.  110 

For  injury  to  person 481 

For  injury  to  property 181 

Fur  wrong  to  person  or  property km,  481,  485;  A.  W.  105, 121 

For  wrongs  to  officers  or  soldiers 485 

Of  wrongs,  duty  of  comnianding  officer 439,  181;  A.  W.  89 


INDEX.  477 

[References  are  to  paragraphs,  except  where  pages  are  Indicated  by  the  letter  "  P  "  preceding  the  number, 
end  Articles  of  War  are  indicated  bj  L  W."  preceding  the  number.] 

Par. 

Reduction  to  ranks,  sentence  of 327 

Regimental  commanders,  as  appointing  authority  of  summary  court-martial 28 

I'"  imental  courts-martial  abolished 5n 

Regular  Army: 

I  'omposition 

Officers  and  soldiers  subject  to  military  law 4  (a) 

Release: 

From  arrest  does  not  prevent  trial 77;  A.  W.  70 

<  )f  accused  upon  acquittal  or  conviction,  when  proper 332  n 

(  If  prisoner  without  pro)>er  authority 57,  423;  A.  W.  7:; 

Relevancy,  of  evidence,  defined 202 

Relieving  enemy  or  corresponding  with 41,  378,  431,  p.  343:  A.  \\  .  Si 

Remission: 

i  ences 381 

I  If  sentence,  effect  of,  at  time  of  approval 383 

( If  suspended  sentence  of  dishonorable  discharge 403 

Removal  of  causes: 

Civil  suits,  when  removable 484 

t  Criminal  prosecutions,  when  removable 484 

Reparation,  refusal  or  omission  by  commanding  officer  to  make 439;  A.  W.  89 

Repeal  of  Articles  of  War  shall  not  affect  prior  offenses 487 

Report: 

Official.    Set  Evidence,  privileged  communication. 

Of  inquesl ,  form  of p.  409 

Of  judge  ah  ocate  of  acquittal  or  conviction  of  soldier 332  a 

Of  judge  advocates  to  appointing  authority 104 

Of  prisoners  received 55,  422 ;  p.  341;  A.  W.  72 

Of  receipt  of  captured  or  abandoned  propertv,  failure  or  delay  in  making. .     430, 

A.  W.  80 

Weekly,  showing  charges  not  returned  to  appointing  authority p.  356 

Reporter: 

Appointment  of 112-11!),  135-136,  457;  A.  W.  115 

Oath  to  be  administered  t" '■''.  132-136,466;  A.  W.  19 

( If  court-martial,  compensation  of 113 

•  if  court-martial  decisions  of  Judge  Advocate  General  with  reference  to 

pay  of H3  n 

Of  court-martial,  detail  of  enlisted  m&u  toi 115 

Of  court -martial,  vouchers  for  pay  of 114 

Seat  in  court s-' 

Voucher  for  pay  of  personal  sen  ices,  form  of p.  405 

When  authorized -1-1- 

Reprimand.  punishment  by 318 

Reproachful: 

Defined P-  247 

Speeches  oi  '  w-  !,° 

Res  gestae,  denned 

Retainers,  to  camp,  serving  with  Army 4,9  10,13,1  ■  .  \\  .  2 

Retired  enlisted  men.    Set  I  '.n listed  men. 

Retired  list,  military  witnesses  on,  attendance  of 

Bel  Lred  officers.    See  « ifficers. 

Return,  to  writ  of  habeas  corpus 47's  480|  pp.  38 


478  INDEX. 

excepl  where  pages  are  Indicated  by  the  letter  "P"  pi  umber, 

and  Arti.  lea  ol  Wai  u  •  the  Dumber.] 

Par. 

Returns,  fab*  ntorender i  p.  338;  A.  W.  67 

.   I.\  judge  advocate  general  before  execution  of  sentence  of  death  or 

dismissal PP-  41 1-414 

mthoritj  : 

i  Appointing  authority. 

Absence  of,  action  by  officer  commanding  for  the  i  Lme  being 369 

Action  by,  must  be  in  person 376 

Action  by,  when  s  edto  another  departmenl 375 

Action  on  acquittal  by 371 

Action  "ii  sustained  Bpecial  plea  i<»  jurisdiction  or  in  l>ar 153(6) 

Approval  of  Lesser  included  offense -  377(a) 

Approval  of  sentence  by 372 

Approval  of  sentence,  form  of 373 

Approval  of  sentence*  in  whole  or  in  part 377 

Approval  or  disapproval  of  acquittal 369 

Approval  or  disapproval  of  sentence  by 369 

Change  of  place  of  confinement  by 389 

ration  of,  in  designating  place  of  confinement 399 

I  action  by 401 

nation  of  place  of  confinement  by 394 

1 -.-   -■       369 

Disapproval  of  sentence  by 372 

Disapproval  of  sentence  of  conviction  of  d<  ect 388 

Disposition  ol  record  of  trial  by 367 

Duty  of,  where  court -martial  acts  improperly  in  imposing  sentence  on 

finding  of  guilty  under  several  ohar.e,  f. »r  -unc  ct'mnse 66 

of  remission  of  sentence  at  time  of  approval 

Form  for  action  by :;',:,;  IT-  :;:1  373 

Function  of,  can  nol  be  delegated 376 

t  included  officer,  approval  of 

power  to  change  sentence 390 

Power  to  add  to  sentences 3S5 

Power  to  approve  loss  of  files  as  punishment 390 

Power  to  ch  of  confinement 389 

r  to  consider  prior  confinement  of  accused 401 

Record  of  acl  Lon  by :",) 

Record  of  trial  to  be  forwarded  to :;,;6 

Igation  by  court  of  inquiry 

i!  of  record  of  summary  court  to 351  (i) 

Revi(  modif;    jenteni     befon   publication 387 

Revisi 

Accused,  pn  actings  in 352 

,,n  of  inquiry  of  h  ■    •  - '■ ' 

martial,  procedure  on 352 

•dure  on 352 

rtial,  procedure  on 353 

Effect  of  presence  of  new  member  is  in :'-' 

Revi  ion  proceedin]  - .  form  of  record  of pp.  363-364 

Reward: 

r,  stoppage  of  pay 329 

ant  of  for  deserter  aol  proof  of  intent L'sl 

Riot,  defined P  -i,,;  A-  w-  89 


INDEX.  479 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P"  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "  A.  W."  preceding  the  number.] 

Robbery :  Par. 

Assault  with  intent  to  rob p.  270 

Commission  of  offense 35,  149,  280,  285,  443;  p.  346;  A.  \Y.  93 

Defined p.  262 

Trial  for,  statutes  of  limitations 149 

Roll-call  of  members  of  court,  how  taken 84 

Routine  duties,  defined 66 

Rules  of  evidence.     See  Evidence. 

Safeguard : 

Defined p.  231 

Forcing  of 41,  428;  A.  W.  78 

Sale: 

As  evidence  of  larceny 74  (o) 

Of  military  property 444,  p.  278;  A.  W.  94 

Of  provisions,  personal  interest  of  commanding  officer  in 437;  A.  W.  87 

Of  stolen  public  property,  how  charged 74  (o) 

Sanitary  train,  when  a  detachment  for  disciplinary  purposes 28 

Saving  clause,  repeal  of  Articles  of  War 487 

Scandal  to  the  service,  how  pleaded 74  (m) 

Secondary  evidence,  when  admissible 237 

Second  lieutenant,  Quartermaster  Corps,  not  usually  detailed  as  member  of 
court-martial 6 

Second  trial  see  also  Double  jeopardy 149  (3) ;    A.  W.  40 

Secrecy : 

As  to  votes  and  deliberations  of  members,  courts-martial 91 

As  to  votes  and  deliberations  of  members,  courts  of  inquiry ; 470 

Sedition 41,  417,  p.  340;  A.  W.  66 

Defined P-  213 

Failure  to  give  information  ol 41,  418;  A.  W.  67 

Failure  to  suppress 41,  418;  A.  W.  67 

Segregation,  of  general  prisoners 341, 396-399 

Self-contradiction.     -See  Evidence;  Witnesses. 

Self-crimination: 

Compulsory,  prohibited 233 

Physical  examination,  requiring  accused  to  submit  to 236  (a-c) 

Privilege  against  is  personal 234 

Procedure  where  alleged  incriminating  r j  uest  ion  is  asked 235 

Rule  not  affected  by  materiality  of  question 233 

\\  here  privilege  ceases 233  (b) 

Senteme: 

Action  after  promulgation  of 401-404 

Action  by  reviewing  authority,  form  of 395;  pp.  371-374 

Adding  to,  unlawful 385 

Adjudgment  of,  vote  of  members  of  court  martial 308 

Application  for  clemency,  effect  of 402 

Approval  of 869-377,  pp.  371   373;  A    W.46,  17 

Approval  of,  by  oflicer  commanding  for  the  time  being 374 

Approval  of,  by  whom 373 

Approval  of,  in  excess  of  legal  limit,  effect  of 386 

Approval  of,  form  of 373 

Approv.d  of  leaser  included  offense 377  (a) 

Approval  of  whole  or  any  part  of 377  (6) 

53915°— 18 33 


480  INDKX. 

[References  are  to  par.i, ;  4  by  Uw  letter  "E"  preceding  the  number, 

urul  Articles  of  War  are  indicated  by  tlio  letters  "  \.  W."  preceding  the  number.] 

Benlence    O  atinued.  Par- 

Approval  of  whole  or  pari  of  finding  of  guilty 377  (b) 

A]  approval  of,  by  appointing  authority 369 

Award  of P-  355 

By  whal  vote  impoBed <J°;  A.  W.  43 

mmutationof 384 

Confinement  at  hard  labor 322 

Confinemenl  withoul  hard  labor  not  to  be  imposed 311  n 

tfirmationof 377-379,386,388;  A.  W.  48,  49 

Conviction  by  summary  court-martial 351  (h) 

Conviction  of  desertion,  disapproval  by  reviewing  authority;  ground  to  be 

1 388 

Date  of  beginning  of 401 

l,(,a, h 40C-41,  90,  295,  308,  3  16,  378,  39 1 :  A .  W.  13,  48, 51 

Death,  authority  to  suspend  until  pleasure  of  President  is  known 391 

Death    cases  to  be  reviewed  by  Judge  Advocate  General  before  execution 

of pp.  411-412 

Death,  confirmation  of 378  (d) 

Death,  procedure  in  cases  involving PP-  413-414 

1  >eath ,  when  authorized 346 

Detention  of  pay 328 

Dishonorable  discharge 320 

Dishonorable  discharge,  can  not  be  mitigated 382 

Dishonorable  discharge,  suspension  of 321, 393 

Dismissal 15  n,  38, 42,  44,  312,  320, 378,  382, 391-30;],  103;  A.  W.  48,  51, 118 

Dismissal,  authority  to  suspend  until  pleasure  of  President  is  known 391 

Dismissal,  cases  to  be  reviewed  in  Judge  Advocate  General's  Office  before 

execution  of PP-  «1-*12 

Dismissal,  confirmation  of 3<8  (6) 

Dismissal  of  cadet,  confirmation  of 378  (c) 

Dismissal,  procedure  in  cases  involving PP-  413-114 

Dismissal,  publication  of,  in  cases  of  cowardice  and  fraud 347;   A.  YV.  -14 

Dismissal,  when  exclusive 312 

Effect  of  approval  of 372 

Effeel  of  disapproval  of 372 

Effect  of  tie  vote  on 90 

Exceeding  legal  limit,  effect  of  approval 386 

Execution  of 3/1 

Execution  of,  in  penitentiary 338 

Forfeil  ure  of  pay  and  allowances 324 

Forfeiture  of  pay,  effect  on  allotments  under  war  risk  insurance  act 311 

tor,  by  courts-martial PP-  369-370 

General  Limitations  on  maximum  punishments 349 

General  officers,  confirmation  of 378;  A.  W.  48 

Hard  labor  withoul  confinement - 323 

flWl   lose  of  pay  In  paymenl  of  reward  for  ret  urn  of  soldier  absent  without 

: 329 

Iih  leasing  on  review  unlawful 385 

Tn  excess  of  legal  limit,  effeel  of  approval 386 

Manner  of  approval 373 

rank,  effeel  of 313 

Maximum  limits  of  punishment 40,42,44, 

306-307,  309-328,  330-333,  340-349,  400;  pp.  369-370,  375-377;  A.  W,  45 


INDEX.  481 

[References  are  to  paragraphs,  except  where  paws  are  indicated  by  the  letter  "  P"  precedinR  the  number, 
and  Articles  of  War  are  indicated  by  theletturs  "A.  \\ . "  preceding  the  number. J 

Sentence — Continued.  Par. 

Mil  igation  of .- 381 

Mil  igation  of,  when  permissible 382 

Modification  of  action  before  publication  of 387 

No  power  in  courts-mart ial  to  stop  pay  to  Governmenl  or  individual 325 

Of  court-martial,  effect  upon  jurisdiction  of  court-martial 38  (c) 

Of  court-martini,  interrupted  by  delivery  to  civil  authorities,  procedure  in 

such  cases. 35 

Of  court-martial,  persons  under,  subject  to  military  law 4  (/) 

Of  general  officer,  confirmation  of 378  (a) 

Of  general  prisoners 330 

Of  officers,  various  kinds  of 310 

Of  soldiers,  various  kinds  of 311 

Pardon,  mitigation  or  remission  of 380-385,  390, 402-403;  A.  W .  50 

Penitentiary 337-339,  341,  396-399 

Penitentiary,  authority  for,  to  be  shown  in  record 339 

Power  of  President  to  commute 402 

Power  to  confirm  part  of  finding  of  guilty— lesser  included  offense 379  (a) 

Powers  incident  to  power  to  confirm 379 

Prescribing  dishonorable  discharge  and  confinement 394 

Prohibition  of  certain  kinds  of 344-345;  A.  W.  41 

Publication  of  dismissal  in  cases  of  cowardice  and  fraud 347;  A.  W.  44 

Publication  of,  effect  of 387 

Punishment  by  fine 317 

Reasons  for,  may  be  spread  upon  the  record 331 

Recommendation  to  clemency  by  court-martial,  or  member  thereof 332 

Record  of,  by  reporter 305 

Reduction  of  noncommissioned  officers. .; 327 

Remission  of 381 

Remission  of,  effect  of,  at  time  of  approval 383 

Suspension  from  command 315 

Suspension  from  duty 316 

Suspension  from  rank 314 

Suspension  from  rank  includes  suspension  from  command 314 

Suspension  of  cadet,  confirmation  of 378  (c) 

Suspension  of 392,  393;  p.  373;  A.  W.  52,  53 

Suspension  of,  in  cases  of  death  or  dismissal,  till  reviewed  by  judge  advo- 
cate general pp.  411-412 

Suspension  of,  of  dishonorable  discharge 392,  393;  p.  373;  A.  \\  .  52 

Suspension  of,  ot  dismissal  or  death,  until  pleasure  of  President  is  known     391; 

p.  373;  A.  W.  51 

Suspension  of ,  of  forfeiture  or  confinement 392;  p.  373;  A.  AY.  .".3 

When  effective 371 

•Sentinel : 

Defined p.  242 

Drunk  or  sleeping  on  post 41,281,436;  p.  344;  A.  W.  86 

Service  of  charges  five  days  before  trial  by  general  court-martial 80 

ice  school,  when  a  detachment  for  disciplinary  purpose* 28 

Sessions  of  summary  court 351  (a) 

Shorthand,  use  of,  authorized  in  taking  testimony 112 


482  inpkx. 

[References  are  to  parnpuih  .  txeepl  whan  pagw  are  indicated  by  the  letter  "P"  preceding  the  number, 
and  Articles  .,f  Warm  Indicated  by  the  letters  "A.  \Y."  precedinp  the  number.) 

Par. 

Silence,  nol  treated  as  confeaaioD 226 

Bketchee  as  evidence,  when  admissible 246 

Bleepin  41,281,436;  p.344;  A.W.86 

Bodomj 443,446;  pp.271,285;  A.  W.  93,  06 

Assault  with  intent  to  commit P-  -71 

Soldier: 

Sei   Enlisted  men. 

Defined 4n>  8J  A- W-  1 

Soldiers'  Home,  inmates  of,  subjecl  to  military  law..  4(h)  n  2, 9-13, 38, 74  (i);  A.  \\  .2 
Special  court-martial.    Set  Courts-martial  and  Courts-martial,  special. 

;  inspection  reports,  Inspector  General's  Department.     See  Privileged 
communications. 

8p< «ial  orders,  how  proved 289 

Special  pleas.     See  Court-martial,  pleas. 
ation: 

Defined G1 

Finding  of  guilty  of  part  of 299 

Form  of,  against  general  prisoner 74  (j)  n 

Form  of,  under  Articles  of  War pp.  335-352A 

How  stated 74  (b) 

Must  allege  a  single  offense 74  (c) 

Numbering  of _ '  - 

Procedure  where  several  specifications  under  one  Article  of  War 72 

Relation  of,  to  charge 61,74  (b) 

Speeches,  reproachful  or  provoking 440;  A.  W.  90 

Spoil: 

By  persons  subject  to  military  law 439;  A.  \\  .  89 

Defined P-  245 

Spy: 

Defined P-  236 

Punishment  of 40  n,  41;  A.  W.  82 

Suspicion  persons  around  camps,  etc 432;  A.  W.  82 

Triable  by  general  court-martial..  13,39-41,308,378,432;  pp.  343-344;  A.W.82 

Squadron,  included  in  term  "battalion"  in  A.W.I 4  n 

State  court : 

Authority  to  inquire  into  legality  of  restraint  by  United  States 477 

Return  to  writ  of  habeas  corpus  issued  by 478;  pp.  390,392 

Statement  of  accused,  contents  and  scope  of 290 

Statement  of  Ben  ice: 

Examination  by  court,  time  for 271 

i  character,  use  by  defense  as 271 

secrets.    See  Privileged  communications. 
Statutes  of  limital  i 

Forva  triable  by  courts-martial 149  (1,2);  A.  W.  39 

Must  be  pleaded 149(3$);  A.W.39 

Not  applicable  to  trial  by  court  of  inquiry 451 

President  of  court  to  advise  an-us^l  in  certain  cases  of  right  to  plead...  149  (3ft) 
Stoppage  of  pay.    See  Pay. 

Striking  superior  officer 41,)5  A-  w-  64 

Subordinates,    compelling    commander   to   surrender   or   abandon    command     426; 

A.  W.  76 


INDEX.  483 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P  "  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.] 

Subpoena:  par. 

Fees  for  service  of 101 

Form  of p.  383 

Service  of,  civilian  witness 100 

Subpoena  duces  tecum,  to  obtain  books,  documents,  etc.,  of  civilian  witness. .       166 

Substitution  of  general  for  specific  article 300 

Substitutions,  power  to  find  guilty  with  exceptions  and.     See  Exceptions  and 

substitutions. 
Summary  conrt-martial.     See  Courts-martial  and  Courts-martial,  summary. 
Superior  oflicer: 

Aseaulting  or  willfully  disobeying 41.  74  (7/),  286,  41o;  p.  339;  A.  VY.  (14 

Defined * pp.  207,  208 

Disrespect  toward 414;  A .  W .  63 

Surgical  operation,  refusal  to  submit  to 68 

Surrender  of  command  to  enemy 41,  425;  p.  341;  A.  W.  75 

Surrender  of  command  to  enemy,  subordinates  compelling 41, 

426;  p.  342;  A.  W.  76 
Suspension : 

From  command 315 

From  duty 316 

From  rank 314 

From  rank,  effect  of,  upon  eligibility  of  officer  for  membership  in  court- 
martial 9  (a) 

Of  cadet,  confirmation  of  sentence  of 378  (c) 

Of  sentence.     See  Sentence. 

Tattooing,  punishment  by.  prohibited 344-345;  A.  W.  41 

Telegrams,  not  privileged  communications 229 

Territorial  departments;  copies  of  records  as  evidence  authenticated  as  official 

copy 238 

Territorial  divisions,  copies  of  records  as  evidence  authenticated  as  official  copy .       238 
Testimonial  evidence: 

Defined 202,  207 

When  hearsay 207 

Testimony,  false  or  mistaken p.  264 

Threats  toward  an  officer  or  noncommissioned  officer 416, 

419;  pp.  211, 217;  A.  W.  65,  68 
Time: 

For  holding  sessions  of  courts-martial,  how  determined 81 

How  pleaded 7  1-/1 

Transcribing  of  record  of  proceedingsof  court-martial,  time  limit  (or  completing.       116 

Transfer  of  accused  to  another  department,  action  by  reviewing  authority 375 

Travel  allowances: 

Witnesses,  how  payable I!»:i 

Witnesses,  payment  for  return  journey 186 

Traveling  expenses,  form  of  voucher  for  reimbursement  of p.  401 

Treason,  number  of  witnesses  required  to  sustain  conviction  of 

Trespass,  defined p.  257 

Trial: 

See  also  Courts-martial,  arraignment;  Pleas;  Eb  Eusal  to  plead;  Motion- 
Accused,  freedom  of  expression  at 201 

Adjournment  at  close  of p.  355 

Adjournment  during p.  355 


4g4  INI'KX. 

[Uefereuees  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P  "  preceding  the  number, 
and  Articles  Ol  Wat  ■«  Indicated  by  Uteletten  "A.  \\."  preceding  the  number.) 

Trial— Continued.  ?<"• 

Arguments  to  court 293 

Competency  of  witnesses,  objection  to,  when  made 247 

Concluding  incidents  of 290-332 

Conduct  of  dimd  examination 250 

Control  of  court  over  conduct  of 249 

Cross-examination,  scope  of 251 

Defined ^(3) 

Deposition,  how  introduced -''•    268 

I>.  tail  matters  to  be  attended  to  after P-  355 

Duty  of  judge  advocate  to  expedite l°3 

ination  of  witnesses  apart  from  each  other •. 24G 

nation  of  witnesses  by  court 253 

Examination  of  witnesses,  met  hod  of HI 

Findings  of  court-martial 294-305 

Finding  of  guilty - 299 

Freedom  of  judge  advocate  in  conducting 100 

Judge  advocates,  suggestions  for pp.  353-356 

og  questions, 'rules  as  to 254 

Loss  of  records  of  before  reviewing  authority  ha*  acted  upon 368 

Objection  to  competency  of  witnesses,  when  made 247 

( )] .filing  statement  by  counsel  and  judge  advocate 197 

( >rdcr  of  examination  of  witnesses 249 

Preparation  for,  as  to  admissibility  of  evidence 199 

Preparation  for  by  judge  advocate  and  counsel  for  accused 196 

Preparation  for,  time  allowed  accused 80 

Procedure,  as  to  precedents  and  authorities  on  evidence 199 

Procedure,  as  to  statement  of  service 271 

Procedure  for  proving  contradictory  statements  out  of  court 262 

Procedure  in  introducing  deposition 267, 268 

Procedure  to  show  self-contradiction -',!) 

Procedure  where  vi  Ltness  refuses  to  answer 235 

Procedure  where  writings  are  introduced  in  evidence 237 

Protection  afforded  v.  Ltnesses 201 

Questions  and  answers,  form  of  recording 249 

Recalled  witness  bo  be  reminded  that  he  has  been  sworn 255 

Record   of,   by  general   court-martial  and   revision   of  proceedings,   form 
0f mmm pp.  357-364 


ope  of. 


252 


Redirect  examination,  scope  of 252 

to  answer,  procedure 235 

to  use  memoranda  to  refresh  recollection 241,243 

Rules  as  to  uniform  to  be  worn,  as  to  Beating  of  court,  roll  call,  etc 

Second  for  same  offense 11!'  (3)»  A.  W.  40 

i  ria  I  required 77;  A.  W.  .  0 

Statemenl  of  accused 290 

forjudge  advocates PP-  353-356 

Tim-  for - ",  SO:  A.  W.JO 

Use  of  admissions  of  accused  by  court 292 

When  public 92 

Within  five  days  alter  service  of  charges,  when  forbidden 80 

Within  ten  days  after  arrest "7;  A-  w-  70 

Tri.,1.  defined 149  <3c> 


INDEX.  485 

[References  are  to  paragraphs,  except  where  pages  are  Indicated  by  the  letter  "P"  preceding  (he  nti  nilior, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  \v."  preceding  the  Dumber.] 

Par. 

Troops,  certain  Articles  of  War  to  be  read  to 282;  A.  W.  Ill) 

Troop,  included  in  term  '  'company  "'  in   A .  \V.  I In 

Twice  in  jeopardy.     See  Double  jeopardy. 

Unclassified  offenses,  general  article 446;  A.  W.  96 

Uniform  to  be  worn  by  members  of  court-martial,  judge  advocate,  and  accused.         82 

United  States  courts,  effect  of  trial  in,  for  .same  act 149  (3d);  p.  <i9 

Unlawful,  defined p.  249 

Unlawful  restraint  remedy,  habeas  corpus 176 

Utah,  fees  and  mileage,  civilian  witnesses  in 185  (c) 

Variant  e: 

Between  pleading  and  findings  as  to  date  and  place 74  {</) 

Of  proof,  from  specifications  as  to  date  and  place,  when  allowed 74  ((f) 

Veterinarians,  not  usually  detailed  as  member  of  court-martial G 

Victuals,  sale  of,  commanding  officers  not  to  be  interested  in 40  n, 

437;  p.  344;  A.  W.  87 
Violence: 

To  persons  bringing  in  provisions 438;  pp.  344-345;  A.  W.  88 

Toward  officer  or  noncommissioned  officer  ordering  into  arrest  or  con- 
finement    p.  217 

Voluntary  confession,  defined 225  (b) 

Volunteers: 

Subject  to  laws,  etc.,  governing  Regular  Army 4  (a),  (6)  n 

When  eligible  for  membership  in  court-mart ial 9  (c) 

When  subject  to  military  law 4  (a) 

Votes  necessary  to  convict  accused 295 

Voting: 

By  members  of  court-martial 90,  294 ;  A .  W .  3 1 

By  members  of  court-martial  in  open  session  forbidden 91 

Closed  session 91 

Effect  of  tie  vote 90 

Of  members  of  court-martial  to  adjudge  sentence 308 

Order  of,  by  courts-martial 90,  294,  308;  A.  W.  .; I 

Order  of,  by  members  of  court-martial 90.  308 ;  A .  W .  ;;  1 

Refusal  of  member  of  court-martial  to  vote,  how  punished 90 

Vouchers: 

Civilian  witness,  affidavit  as  to  correctness  of ' 187 

Chilian  witnesses,  certificate  of  judge  advocate 187 

Civilian  witnesses,  to  be  delivered  to 189 

For  compensation  of  civilian  witness,  form  of p.  397 

For  payments  to  reporters  of  courts-martial 114 

Lost,  civilian  witnesses I'.K) 

Payment  of  civilian  witnesses,  contents L87 

Personal  sen-ices  of  reporter,  form  of p.  405 

Reimbursement  of  traveling  expenses p.  401 

War  Department,  public  records  of.  authenticated  official  copy,  use  as  evidence.       238 
Warrant  of  attachment : 

Circumstances  requiring  issue  of,  rare 159.  168 

Force,  use  of,  necessary,  in  execution  of 168 

Form  of  warrant p.  387 

Habeas  corpus  proceedings  in  connection  with,  Federal  court 169  (a) 

Habeas  corpus  proceedings  is  connection  with,  State  court Hi'-'  <  h) 

Papers  to  accompany,  to  make  return  to  writ  of  habeas  corpus 168    «-< ) 


486  INDEX. 

[References  are  to  par .  re  Indicated  hy  Hie  letter  ,-P"  preceding  the  number, 

irtiolM*!  War  are  indicated  l>y  the  letter.-  ■■  \.  w."  preceding  the  number.] 

Par. 

Washington,  fees  and  mileage,  civilian  witnesses  in I  ■ 

Waste: 

By  persons  Bubjed  to  military  law 430;  A.  \V.  89 

1 p.  245 

Watchword,  disclosure  Of 41,  4l'7;  p.  mil';  A.  W.  77 

Weap  is,  defined p.  284 

Westt  esand  mileage  of  civilian  witnesses  in 1S5  (a) 

Wife.    Sa  Husband  and  wife. 

Willful,  defined p.  197 

Willi ul  disobedience,  defined pp.  209,  211 

Willful  injury,  defined p.  239 

-ses: 

-  Civilians;  Evidence. 

Accused  as  witness 214 

Accused  musl  be  confronted  with,  when 185;  A.  W.  25 

Advance  notice  to 162 

Application  of  rules  of  evidence  irrespective  of  rank  of 200 

Attachments  to  compel  attendance  of 159;  A.  W.  22 

Attendance  of  military,  how  secured 163 

Attendance  of,  summary  court 351  (c) 

Bias  or  interest  as  affecting  competency  or  credibility 213 

Capital  cases,  accused  must  be  confronted  with,  in 165;  A.  W.  25 

Civilian,  contents  of  voucher  for  payment  of 187 

Civilian,  form  of  subpoena  summoning p.  383 

Civilian  in  confinement,  obtaining  testimony  of 167 

Civilian  in  Government  employ,  transportation  in  kind,  etc 184 

Civilian,  in  several  trials  on  same  day 188 

Civilian  not  in  Government  employ,  fees  and  mileage 185, 186 

Civilian,  procedure  to  obtain  books,  documents,  etc 166 

Civilian,  procedure  to  secure  attendance  of 164 

Civilian,  procedure  where  alleged  incriminating  question  is  asked 235 

Civilian,  service  of  subpoenas  on 160 

Competency  of 209 

Competency  of  accused  when  testifying  againsl  an  accomplice 217 

Comp  -  affecting  res  gestae  statements 223 

Competency  of,  how  determined 198,  199 

Li  y  of  husband  and  wife  to  testify  against  each  other  in  certain 

•    in  inns 228 

Competency  <>f  mental  or  moral  defectives 211,  212 

Competency  of,  not  affected  by  rank 200 

Competency  of,  objection  to,  when  made 247 

Competency  of,  rules  as  to 208-214,217,218 

Contempts — 

Authority  to  punish 17 

Direct  and  constructive 173  (c) 

-us  who  may  be  punished 173  (b) 

■  'lure  for  punishment  of 173  (d) 

Corroboration  of  single,  offenses  requiring 224, 225, 248 

Courts  of  inquiry 458-160,466,467;  A.  W.  101 

Credibility  as  affected  by  prejudice,  bias,  relationship 260 

Credibility  as  affected  by  self-contradiction 259 


INDEX.  487 

[References  are  to  paragraphs,  except  where  pages  are  indicated  by  the  letter  "  P  "  preceding  the  number, 
and  Articles  of  War  are  indicated  by  the  letters  "A.  W."  preceding  the  number.) 

Witnesses— Continued.  par. 

Credibility  of  accused  as  a 2G1 

Credibility  of,  conviction  of  crime 258 

Credibility  of,  how  dei ermined 256 

Credibility  of,  impeachable  irrespective  of  rank 200 

Credibility  of,  proof  of  character  by  general  reputation 257 

Credibility  of,  proof  of  contradictory  statements  out  of  court 262 

Credibility  of,  self-contradiction,  rule  as  to 259 

Cross-examination  of 251 

Depositions.     See  Depositions. 

Direct  examination  of 250 

Employment  of  experts 192 

Enlisted  men,  active,  travel  allowances 183 

Enlisted  men,  retired,  mileage,  and  per  diem 183 

Examination  of 246-255 

Examination  of,  court  of  inquiry 458-460,  467 

Examined  apart  from  each  other 246 

Expert,  defined 218 

Experts,  employment  of 192 

Experts,  procedure  to  obtain 192 

For  accused,  summoned  by  judge  advocate 161 

Form  of  habeas  corpus  for pp.  389-390 

For  prosecution  ineligible  as  member  of  court-martial,  general  or  special. .  6 

For  prosecution  may  be  summary  court-martial  when  only  officer  present 

with  a  command 6 

General  capacity  of 210 

Held  under  warrant  of  attachment,  procedure  on  habeas  corpus  issuing 

out  of  State  court 47S  (a) 

Hostile,  may  be  examined  by  leading  questions 254 

How  questioned  during  trial Ill 

Impeachment  of.  by  evidence  of  reputation 257 

Impeachment  of  one's  own 262£ 

Incriminating  questions  prohibited 233-236;  A.  W.  21 

Inquests 4S3;  p.  409;  A.  W.  113 

Interest  or  bias  as  affecting  competency  or  credibility 213 

Investigation  of  frauds,  etc. .  administration  of  oaths 138  (a) 

Leading  questions,  grounds  for 254  (1-5) 

Members  of  court-martial  as.  for  the  defense 131  (b) 

Members  of  courts-martial  as.  for  prosecution 129, 131  (a);  A .  W.  8,  9 

Members  of  courts-martial  as,  when  accused  pleads  guilty 131  (d) 

Members  of  court-martial  as,  when  called  by  court 131  (e) 

Mental  incapacity  of 212 

Mileage  o£    Set  Mileage. 

Moral  incupacit  y  of 211 

Number  required  to  sustain  conviction 248 

Number  required  to  sustain  conviction  of  perjury  or  treason 248 

Oath,  additional  ceremony  to  bind  conscience  of 132   i) 

Oath,  authority  to  administer  to 91,132-138;  A.  \\ .  J9 

Oath,  by  whom  administered  in  certain  cases 

oath,  form  of 134  (a);  A.  W.  19 

Oath,  in  court  of  inquiry 466 


488  antEZ. 

.to  paragraphs,  except  where  pagee  are  indicated  by  the  I.-tt.-r  "P"  prpwliiiR  the  number, 
•nd  Article  of  War  are  indicated  by  the  letter!  "A.  W."  preceding  the  number.] 

Witnesses    Continued.  Par- 

action  to  competency  of,  where  evidence  taken  by  deposition,  when 

made ** 

otiiccrs.  active,  travel  allowances 183 

ired,  mileage  and  per  diem 183 

(  frder  ol  ezaminatioii ' 

Philippine  [slands,  punishment  for  refusal  to  appear  or  testify 171 

Power  of  court  of  inquiry  to  summon  and  examine  158 

Privileged  communications  between  husband  and  wife 213 

lure  to  obtain  t ks,  documents,  or  papers L66 

ure  where  accused  tails  to  make  Btatemenl 215 

jtoohtain L59  L69,  L72; pp.  383-890;  A.  W.  22 

Procuring  attendance  of,  if  civilians pp.  384-385 

[on  ..:'.  Erom  improper  questions f     201 

Puni  hmenl  tor  refusal  to  appear  or  testify 170,171;  A.  W.  23 

Recalled    to  be  reminded  thai  they  have  been  sworn 255 

Refusal  i"  answer,  how  treated - 235 

Refusal  to  appear  or  testify  when  summoned  before  court  of  inquiry 459 

I  to  testify.      ..    168,  L70  L72,  L83-188,  L92, 232, 235;  pp.  383-390;  A.  W.  23 

Retired  military,  attendance  of 163 

hi  hi  of  members  of  court  to  examine 100 

Self-erimination  by  compulsory  examination  of  person 236 

Self-crimination,  privilege  against  personal 234 

State's  evidence,  effeel  of  turning -'16 

Summoning  of,  necessary Jl»l 

Tender  of  fees  preliminary  to  prosecution 170,  172 

Testimonial  knowledge,  rule  as  to 220 

Testimony  at  former  trial,  proof  of 275 

Use  of  one  joint  accused  by  prosecution 156 

Vouchers  for  civilian,  contents 187 

Vouchers  for  compensation  of  civilian,  form  of p.  397 

Vouchers,  lost '  !J° 

Vouchers  to  be  delivered  to 189 

Warrant  of  attachment— 

<  ircumstances  requiring  issue  of  rare 159, 168 

Force,  use  of  necessary  in  execution  of 168 

Habeas  corpus  proceeding  in  connection  with,  Federal  courts 169  (a) 

Habeas  corpus  proceedings  in  connection  with,  state  courts 169  (6) 

Papers  to  accompany,  to  make  return  to  writ  of  habeas  corpus 168  (a-e) 

Words  and  phrases.     Set  Definitions. 
Writings.    Set  Evidence,  documentary. 

Written  instruments,  how  pleaded M  (t) 

Wrongs  Buffered  by  officers  and  soldiers,  redress  of 485;  A.  W.  121 

Wynn  Lvilian  witnesses  in 185  (c) 


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